Imagine you hire a company to perform a service or conduct a function of your business you have chosen to outsource. As a result, the contractor company sends its employees to your facility to perform those tasks. Now imagine an employee of the contractor engaging in union organizing activities while on your property. Can you have the contractor company remove its employee from your property?
It's a simple question; however, the answer isn't so simple. The safe assumption to start with is that you cannot ask the company you contracted with to remove one of its employees when the employee engages in protected activity. In a recent decision, the National Labor Relations Board (NLRB) required a company to reverse its demand to a contractor company to remove an employee engaging in union-organizing activity on its property. In addition to being required to allow the contractor-company employee on its property, the employer was also required to make payment to the contractor employee for any losses suffered by the requirement to remove the contractor employee from the employer's property.
This general theme should cause employers to pause and consider carefully the identity of their contractors and the number of non-employees granted access to their facilities. While this recent case makes it clear that an instruction to a contractor to remove contractor employee(s) engaging in protected activity is unlawful, there may very well be circumstances that would allow for the removal of the contractor employee(s). Should a similar situation arise at your workplace, it is advisable to think carefully before requiring a contractor to remove one of its employees from your property.