ous specialty crop farmers and the rural economies
they contribute to across the U.S. should it be implemented in its current form”, wrote Kunickis in a letter
dated Aug. 25. The rule’s faults, according to Kunickis,
include a lack of bee kill incident analyses to support
the need for a ban; inaccurate reasoning for listing the
76 pesticide ingredients; and the dearth of flexibility
offered to farmers under the rule, a move that could
exacerbate grower-beekeeper relations, not improve
Though the restrictions were announced as a proposed
rule, they did not include a cost-benefit analysis as
required under the Federal Insecticide, Fungicide and
Rodenticide Act, Kunickis said. USDA’s previous comments on EPA’s work to protect pollinators came from
the department’s chief economist Robert Johansson.
The letter sparked a congressional hearing.
The proposal has received more than 1,200 comments
“Inside This Issue:.” South Dakota Agri-Business Association E-Newsletter. N.p., 16 Sept. 2015. Web. 28
Sept. 2015. < http://www.sdaba.org/newsletter/index.
USDA continued from page 1
if they share or codetermine those matters governing the
essential terms and conditions of employment. Under this
standard, an employer would only be held to be jointly
employing workers if they actually exercised the right to
control. Moreover, under the old standard, the exercise
of such control must have been direct, immediate, and
not limited and routine.
The new standard eliminates the requirement that the
employer actually exercise control. Instead, the business
need only retain the contractual right to control – even if
it has never exercised it. Further, the Board rejected the
direct, immediate, and not limited and routine criteria,
holding instead that indirect control (e.g., control through
an intermediary) is now sufficient.
The NLRB’s new standard includes control over any
term or condition of employment and is not limited to
an exclusive list of factors. Its analysis of the factors at
issue demonstrates just how expansive the scope is. BFI
played no actual role in hiring or disciplining the staffing
company employees, but the NLRB determined it was
critical that BFI retained the ability to reject workers
assigned to its facility. BFI also did not actually supervise the staffing company workers, but the Board found
critical that BFI levied indirect control by setting shift
schedules and occasionally assigning tasks through the
staffing company managers.
This decision is not as significant for what it stands for so
much as what it intends. The Board goes out of its way
to emphasize that this decision is limited to these unique
facts, and some employers might find comfort that the
Board says it does not necessarily apply to other business models, nor does it expressly allow for the inclusion
of temporary employees into bargaining units with their
regular counterparts. Unfortunately, however, it does not
NLRB continued from page 1
Council (RCC) commitment to establishing a comparable approach in Canada.
Since October 1st, Canadian companies trying to recover
unpaid bills have had to post a bond of double the value
of their claim to use PACA. Many cannot afford this and
simply have to walk away from what they are owed, a
decision several have already had to make even through
winter with few Canadian shipments. As summer passes,
the industry expects to see a much larger impact.
The NDP has shown they recognize the importance of
fruit and vegetable producers to providing fresh, healthy
food to Canadians. The government payment protection program for produce growers like PACA will allow
sellers to maintain an ownership trust until payment has
been received. It will also negotiate with the U.S. to
restore Canada’s privileged access to PACA protections.
Produce sellers would have the protection they need,
without any cost to government.
“ FreshFruitPortal.com » Canadian Produce Industry
Welcomes NDP’s Produce Payment Protection Pledge.”
Fresh Fruit Portal Canadian Produce Industry Welcomes
NDPs Produce Payment Protection Pledge Comments.
FreshFruitPortal.com, 24 July 2015. Web. 28 Sept. 2015.
expressly foreclose that possibility, nor does it preclude
the agency from extending this doctrine to cover those
circumstances going forward.
Given this new decision, any employer that retains the
right to impose even indirect control over the working
conditions of temporarily placed employees runs a serious risk of being deemed their joint employer – not only
for bargaining purposes, but potentially for unfair labor
practice liability as well.
As a result of this decision, employers and temporary
service providers alike should scrutinize the parameters
within their written service agreements and their underlying practices for reference to right to control. This
includes an analysis of pre-employment qualification
and hiring standards, assignment and retention of individual temporary employees, shift schedules, workload
and pace of work, and wages and benefits.
No doubt that the complete elimination of many of
these factors may be impractical in many cases. But to
the extent that their presence can be minimized, the par-ties can at least develop and preserve viable arguments
against imposition of joint employer status. If you have
any questions about this decision, or how it may affect
your business, please contact your attorney.
“NLRB Starts Down The Slippery Slope With Controversial New Joint Employer Ruling.” Fisher & Phillips
LLP. N.p., 28 Aug. 2015. Web. 28 Sept. 2015. <https://