WashU Expert: NLRB decision reflects evolving labor market

Contract employees and other temporary workers will be able to bargain more effectively with the business entity that controls their working conditions and wages after an Aug. 27 decision by the National Labor Relations Board (NLRB).

Crain

Previously, contract workers employed in construction, fast food and other industries were considered by law to be a step removed from the parent companies.

The ruling signals a shift toward a more realistic and fact-dependent analysis of the evolving nature of employment in the modern labor market, said noted Washington University in St. Louis labor law expert Marion Crain.

“One could say that the NLRB pursued a similar approach in the context of determining whether college athletes are employees for purposes of collective bargaining,” said Crain, JD, the Wiley B. Rutledge Professor of Law and vice provost of the university.

In last year’s Northwestern University case, the board refused to exercise jurisdiction in part because of concern about how doing so would impact college sports programs, Crain said.

During that case, the board’s concern about how asserting jurisdiction would impact college sports reflects its willingness to look at the larger impact of its decisions on labor markets and on the economic structure of particular industries, she said.

“While that case redounded to the benefit of the purported employer (universities), the Aug. 27 NLRB decision benefits workers whose efforts ultimately serve the deep pocket firm that utilizes frequently under-capitalized contractor firms to deliver a service,” she said. “The economic reality of the situation makes collective bargaining with the contracting firm fruitless where wages and working conditions are really dictated by the deep pocket firm.”

The common denominator, political polarities aside, Crain said, is the board’s interest in adapting its doctrine to fit an evolving labor market.

“This shift is not limited to the NLRB,” Crain said. “In July, the U.S. 2nd Circuit Court of Appeals issued an opinion in Glatt v. Fox Searchlight Pictures, Inc., setting forth a new test for determining whether interns are employees entitled to protection under the Fair Labor Standards Act and state wage and hour laws.

“The court’s new test was designed to heed the realities of the modern intern economy, and is flexible and heavily fact-dependent,” she said.

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