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FEATURE October 2015 • www.CPAPracticeAdvisor.com 33 p u t i n a n e w a d d i t i o n o r n e w plumbing would seem to satisf y the new joint-employer test. Te dissent stated: "Te result is a new test that con f uses the def in ition of a joint employer and will predictably pro- duc e broa d-ba se d i n s t a bi l it y i n bargaining relationships." Implications of the New Joint-Employer Rule T he B ro w ning -Fe r r i s dec i sion i s likely to have broad efects on any company that utilizes contract or sta f ng workers, as well as on the f ra nch iser/f ra nch isee model a nd even parent/subsidiar y structures. Some of the implications include: • Obligation to Bargain with Contract Employees. Te frst ramifcation of the decision is the obligation of an employer to bargain with contract employees if they move to unionize. Such an obligation could also open up an employer to liability for unfair labor practices commited by the contracting company, or the obligation to produce fnancial/ proprietary information during contract negotiations. • Managing Multiple Units. An employer who utilizes multiple contract workers for various tasks, such as sanitation services and security services, could fnd itself with two sets of contract workers, both represented by diferent unions, and both requesting very diferent contracts. In addition, the majority's decision does not make clear whether other companies that use the same contracting service for similar workers will also be obligated to bargain. In theory, there could be multiple employers required to bargain, along with the contract company. • Susceptibility to "Micro-Units." When this recent decision is read in conjunction with the NLRB's prior decision in Specialty Healthcare, where the Board essentially allowed the union to choose the scope of a bargaining unit, employers that utilize contract employees are especially vulnerable to unionization of small "mirco-units" of employees or contract workers. • Boycots and Pickets. Te majority's decision also erodes protection against illegal secondary boycots, strikes, and picketing. Once an employer is deemed to be a joint-employer, if a union representing contract workers pickets the employer's facility, such a picket will no longer be illegal under federal labor law. It is too early to determine exactly w h at t he pr a c t ic a l e f f e c t of t he N LR B's decision w ill be, but it is clea r t hat employers who ut i l ize stafng or contract workers need to think about the potential impact. What To Do Next Employers should take immediate steps to understand the implications the Browning-Ferris decision may have upon their workforces. • Review contracts with contract and stafng companies. With the help of both inside and outside counsel experienced in labor law issues, employers should review and analyze their contracts with all out side compa n ie s t h at prov ide labor. A fer such a review, the com- pany w ill be better able to under- stand what any potentia l r isk s or liabilities are. • Understand the politics. Many of the actions involved with r e c e n t N L R B a c t i v i t y r e v o l v e around unions tr y ing to increase t h e i r n u m b e r s a f t e r y e a r s o f decl i n i ng membersh ip. I n ma ny cases, un ions a re being met w it h sympathetic responses from elected ofcials and appointed boards. In order to ensure the best interests of organizations and their employees, companies need to be realistic about the political, legal, and economic env ironment that is driv ing many NLR B rulings and decisions. • Stay on top of new developments. Un for t u n ate l y, t he B ro w ni ng - Fe r r i s dec i sion w a s not t he on ly joint-employer case pending before the NLR B. McDonald's is currently involved in a high-profle case before t he N L R B concer n i ng labor law cha rges aga i nst t he Mc Dona ld 's cor porate parent and franchisees. A ny decision from the NLR B could Statement of Ownership, Management, and Circulation (Requester Publications Only) 1. Publication Title 2. Publication No. 3. Filing Date CPA Practice Advisor 017-576 4. Issue Frequency 5. No. of Issues Published Annually 6. Annual Subscription Price Irregular - Feb, April , June, Aug, Oct, Dec 6 $3.00 Qualified Association $48.00 Non-Association 7. 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