October 14, 2019

October 14, 2019

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Labor Law Developments That Will Shake Technology, Media and Telecommunications Employers

Several recent National Labor Relations Board (“NLRB” or the “Board”) decisions are likely to give further momentum to ongoing union organizing efforts targeting employers in the technology, media and telecommunications  industry.  Organized labor has already demonstrated that it is interested in actively expanding in this area, both among white collar employees and ancillary workers.

  1. Most significantly, on August 27, the Board discarded the test it had used for determining whether companies are joint employers for the past 30 years and adopted a new standard that will make it far easier for unions and employees to establish that a company is an “employer” and responsible for its contractors, suppliers, vendors and franchisees’ employees. Under the new standard, what matters is whether the purported joint-employerpossesses the authority to control the terms and conditions of employment, either directly or indirectly. In other words, the actual or potential ability to exercise control, regardless of whether the company has in fact exercised such authority, is the focus of the Board’s inquiry.  As the Board puts it, “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry”.

  2. Since the Board’s amended rules for votes on unionization, commonly referred to as the “ambush election rules” because employers are often caught by surprise when a petition is filed, the median number of days between the filing of a representation petition and the day on which employees vote has fallen by 40%, to approximately 3 weeks from petition to vote. This means employers have a far shorter time to respond and campaign and is expected to significantly increase the union’s chances of winning the vote.

  3. Finally, in its decision in DPI Secureprint, Inc. the Board expanded a union’s ability to slice and dice an employee population to create ever smaller micro bargaining units in which unions can group supporters.

Taken together, these three developments expand the ability of unions to rapidly organize small bargaining units and to organize temps, leased employees and employees of tech, media and telecommunications suppliers and support, such as distribution, cleaning and janitorial, catering, and transportation and to saddle the company contracting for such services with  bargaining obligations by claiming it to be a joint employer with the actual employer. These developments present special challenges for companies that use staffing agencies or subcontractors to provide ancillary services. Unions have greater flexibility in setting the scope of a bargaining unit while employers have less time to respond to a petition and prepare for a vote on union representation. Employers should audit their relationships with service providers to determine the risk of joint employer treatment and develop strategies to immediately respond to union organizing campaigns.

©2019 Epstein Becker & Green, P.C. All rights reserved.


About this Author

Daniel J. Green, labor, employment, attorney, Epstein Becker, law firm

DANIEL J. GREEN is an Associate in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Mr. Green:

  • Defends clients in EEOC investigations

  • Defends clients against unfair labor practice complaints involving, among other things, ambiguities in collective bargaining agreements

  • Opposes the class certification of plaintiffs in actions alleging misclassification as independent contractors

Steven M. Swirsky labor employment lawyer health care and life sciences attorney
Member of the Firm

STEVEN M. SWIRSKY is a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the firm's New York office. He regularly represents employers in a wide range of industries, including retail, health care, manufacturing, banking and financial services, manufacturing, transportation and distribution, electronics and publishing. He frequently advises and represents United States subsidiaries and branches of Asian, European and other foreign-based companies.

Mr. Swirsky:

  • Advises employers on a full range of labor and employment matters involving labor and employment issues in transactional matters
  • Represents employers in union avoidance, organizing campaigns, and related proceedings before the National Labor Relations Board
  • Represents employers in collective bargaining and in connection with strikes, picketing and arbitration proceedings
  • Handles grievances and arbitrations concerning work rule disputes and discharges, for both unionized and non-unionized employers
  • Assists with employment litigation, including Title VII, ADEA, ADA and other employment discrimination matters before state and federal courts and administrative tribunals including the EEOC, and the New York State Division of Human Rights
Michelle Capezza, epstein becker green, New York, employee benefits

MICHELLE CAPEZZA is a Member of Epstein Becker Green in the Employee Benefits and Health Care and Life Sciences practices, and co-leads the Technology, Media, and Telecommunications strategic industry group. She practices law in the areas of ERISA, employee benefits, and executive compensation. Ms. Capezza has more than 18 years of experience representing a range of clients in these types of matters, from Fortune 500 companies and multinational corporations to non-profit entities, medium-sized businesses, and individual executives. Ms. Capezza provides...

Ian Carleton Schaefer, Technology Practice Group, Epstein Becker,

IAN CARLETON SCHAEFER is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. He co-leads the Technology, Media, and Telecommunications ("TMT") strategic industry group and serves as co-editor of the Technology Employment Law blog. Named to the New York Metro Rising Stars list (2011, 2013, 2014) in the area of Employment & Labor, Mr. Schaefer provides a practical and results-driven approach to counseling and defending employers on the full spectrum of employment issues. He has...