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-employer possesses 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.
Back to Workforce Bulletin Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Workforce Bulletin posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.