New Political Landscape
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ment law and
we all face as
they relate to
the EEOC. ASA
has helped me
speak as an
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JASON PATRICK, TSC, CSP, CSC
Express Employment Professionals
contractors. Although staffing firm clients
have long been viewed as joint employ-
ers under the prior definition, clients have
expressed concern regarding their poten-
tial liability under the expanded definition.
Expansion of joint employment has been
of special concern to businesses operating
under a franchise model because it exposed
franchisors, for the first time, to potential
liability for the conduct of their franchisees.
Congress also may address both the overtime and joint employment issues.
U.S. Occupational Safety and Health
Administration. As part of the Labor
Department, OSHA’s mission is to assure
safe and healthful working conditions for
workers. Worker health and safety is a top
ASA priority. The association worked closely
with OSHA leadership throughout the Obama
administration, including personally with the
administrator, to address issues of concern.
ASA signed a formal alliance with the agency
in 2014 and launched a new safety certification program with the National Safety
Council in 2016. ASA recently signed a five-year extension of its alliance with OSHA, and
will continue to work closely with the agency
under the Trump administration.
The new OSHA administrator has yet
to be named, and it remains to be seen to
what extent the agency will continue the
temporary worker initiative started under
the Obama administration. ASA supported
the initiative, which featured stepped-up
enforcement and education, including a
series of safety bulletins specific to the staff-
ing industry (see osha.gov/temp_workers).
Staffing companies have used the bulletins
to help educate their internal employees and
clients regarding workplace safety.
National Labor Relations Board. The
NLRB’s mission is to safeguard employees’
right to organize and determine whether
unions can represent them in collective bargaining. The board under President Trump
may reverse the Miller & Anderson case,
decided under President Obama, that allowed
temporary workers to be included in clients’
bargaining units without the staffing firm’s or
client’s consent. The board also may overturn
the 2015 decision in the Browning-Ferris case
that expanded the definition of joint employment. For more than 30 years, the board
had held that joint employer status could
be found only when each employer directly
affected matters relating to the employment
relationship, such as hiring, firing, discipline,
supervision, and direction. But in
Browning-Ferris, the board ruled that clients could be
held jointly liable even if their control over
such matters was only indirect.
U.S. Equal Employment Opportunity Commission. The EEOC’s 2017–2021
enforcement plan focuses on “complex
employment relationships and structures
in the 21st century workplace…[including]
temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” Those relationships were
a top priority of the Obama administration,
exemplified by the Labor Department’s targeting of so-called “fissured” work arrangements.
Those issues may not, however, be a top priority of the new EEOC acting chair, Republican
Victoria Lipnic, a lawyer with private-sector
experience who has spoken at ASA events
and knows our industry. We expect Lipnic
to bring a more balanced perspective to the
enforcement of the equal employment opportunity laws and regulations.
—Ed Lenz, ASA
The board under President Trump
may reverse the Miller & Anderson
case, decided under President
Obama, that allowed temporary
workers to be included in clients’
bargaining units without the staffing
firm’s or client’s consent.