KNOW YOUR RIGHTS:
PROBLEMS ORGANIZING CONTINGENT WORKERS
by Doug Bonney
This is Doug Bonney of the Bonney Law Office here in Kansas City, arid it’s time once again to know your rights.
Because tonight’s show deals with economic justice and organizing for the 21st century, I wanted to talk about a serious problem that makes organizing nearly impossible for a large number workers in today’s economy. I often get calls from workers who are placed in jobs by temporary agencies. These temporary workers commonly have a full range of complaints about their working conditions, pay, arid lack of benefits. They also have problems like being fired for no reason and being treated worse than regular employees of the companies that use temporary help.
Unfortunately, I have to tell these temporary workers not only that they are employees at will and can be fired for any reason or no reason at all but also that they do not have a realistic option of unionizing. Although many regular employees do not take advantage of the option of joining a union in order to address problems in their workplaces, at least regular employees can join a union without having to overcome nearly insurmountable hurdles. On the other hand, however, temporary workers face a much more difficult road on the way to unionization because they serve two masters: the temporary agency and the company for which they actually perform work.
This situation is called a joint employer relationship according to federal labor law. And it makes very difficult to organize temporary employees because a union cannot simply go to the temporary agency and unionize all of the temporary workers placed by that agency. Instead, the National Labor Relations Board has held that unions must organize temporary employees at each individual work site because both the temporary agency and the company hiring the agency’s workers have control over those temporary workers. This obviously makes it almost impossible to organize temporary workforces. One management labor lawyer has indicated that this doctrine means that temporary workers cannot be
organized unless all of the employers consent to the union representation.
This joint employer relationship also presents a practical problem for union organizers because temporary workers usually stay on a job for only a short time. Thus, the union organizer doesn’t have adequate opportunity to talk to and develop a relationship with those employees. By the time the employees learn to trust the organizer, they are gone, off working for another joint employer.
Furthermore, when a unionized company hires temporary workers, those workers are not included in the collective bargaining unit and do not have the contractual rights that the regular employees have under the labor contract. Again, these temporary workers are left out because they serve two masters and the Labor Board has decided that bargaining on behalf of those temporary workers cannot take place unless it includes both of the joint employers.
Another problem making organizing difficult in the current economy is the use of so-called “independent contractors” by employers. Companies more and more frequently call workers independent contractors because it allows them to avoid paying taxes for social security, Medicare, and unemployment insurance. It also allows them to avoid unions because independent contractors are not employees under the federal labor laws and thus cannot organize unions.
Because so many employers now use temporary workers and independent contractors, this has become a major problem and an impediment to organizing a substantial number of workers in the economy. The NLRB is currently considering cases that involve these issues of organizing temporary employees and independent contractors. Perhaps the NLRB will change the law in this area. In any case, temporary workers and so-called “independent contractors” need to know that they are second class citizens when it comes to joining a union.