December 10, 2018
Grievance of LSNYC’s Use of Temporary Agency Workers
TO: Raun Rasmussen, LSNYC Executive Director
From: Sonja Shield, Union President
Date: December 10, 2018
This grievance is filed pursuant to the Collective Bargaining Agreement Section 8.2(C), 3.4, 17.10(E) and any other applicable provision of the contract or labor law.
This grievance concerns LSNYC’s abusive use of temporary agency workers for extended periods of time, without proper notice to the union upon the arrival of each worker from a temporary agency.
LSNYC is violating two provisions of the union contract:
CBA provision 3.4 governing Temporary Agency Workers mandates that “No collective bargaining unit position may be filled by a person(s) placed in a program from a temporary employment agency for a period of more than six (6) weeks except where the person(s) is filling in for an employee who is on a leave from which the employee is expected to return. Under this exception the maximum amount of time temporary employment agency work may be used is four months.”
CBA provision 17.10(E) governing Temps, Part-Time Employees, and Volunteers mandates that “The employer will provide written notice to the shop in advance if possible and otherwise, upon the arrival of temporary employees, employees who work less than fifteen (15) hours, or volunteers.”
The use of temporary agency workers to do bargaining unit work for longer than the six weeks permitted by the union contract is a direct attack on our union. Temporary agency workers generally are paid minimum wage by their temporary agencies, far below the union pay scale LSNYC pays employees pursuant to the negotiated union contract. Temporary agency workers rarely receive health insurance, unlike the union members they work alongside doing the same work. Temporary agency workers are not union members and do not receive any of the protections and countless other benefits the union has negotiated in our contract.
The union recently learned that LSNYC has been maintaining a full-time worker from a temporary agency in the finance department for approximately ten months, since February 2018. No notice of this temporary agency worker was ever provided to the union.
Once the union learned about this temporary agency worker, LSNYC leadership announced that it would have the temporary agency replace her with a new temporary worker to perform the same bargaining unit work, in a clear attempt to undermine the union contract. When a union delegate asked the Chief of HR and Diversity on December 3rd about the use of a temporary agency worker in the finance department, the Chief of HR and Diversity stated that the Chief Financial Officer was supposed to have (though had not) asked the union “for a waiver.” The Chief of HR and Diversity further stated “I guess they’ll just have to bring in another temp then.” It is our understanding that on December 7th, LSNYC’s senior leadership team (which includes LSNYC’s Executive Director, Deputy Director, Chief of HR and Diversity, Chief Financial Officer, Chief Operating Officer, and the Project Directors in each borough) discussed the situation, refused to authorize the creation of a full-time position on payroll, and decided to have the temporary agency replace her with a different temporary agency worker.
Terminating this particular agency temp and replacing her with a different agency temp performing the same bargaining unit work does not cure the contract violation. The protections of CBA 3.4 attach to the bargaining unit work performed, not to the worker from the temporary agency who performs the work. Therefore, any attempt by LSNYC to circumvent the protections of CBA 3.4 by insisting that the temporary agency send a different temporary worker to replace the current agency temp would not only be an act of retaliation, but would also continue to violate CBA 3.4. LSNYC cannot undermine the union and the protections of CBA 3.4 by bringing in a rotating cast of temporary workers, each for six weeks at a time.
LSNYC’s choice to hire a temporary agency worker to do bargaining unit work for a period of time far in excess of that permitted by the union contract, while failing to provide proper notice to the union of the temporary agency worker, is shameful. LSNYC’s stated intention, upon the union’s discovery of this worker, to have the temporary agency replace her with another temporary agency worker, is even more shameful. And the fact that LSNYC is simultaneously in the process of finalizing a contract with HRA for $410,064.95 to represent low-wage workers who are being exploited by employers is irony itself.
These actions are part of a pattern of LSNYC’s abusive use of agency temporary workers for impermissibly long periods of time. For example:
In March 2016, following a January 2016 letter from the union to LSNYC demanding additional hires to provide needed administrative support given the hiring of 153 new staff in the prior two years (39% of its 394-person staff),[1] a worker was brought in from a temporary agency to provide assistance as an executive secretary/assistant bookkeeper. The temporary agency was paid $27 per hour, of which only a portion was paid to the temporary agency worker. In May 2016, LSNYC circulated a job posting to fill that position with a paid LSNYC staff person, but kept the temporary agency worker on for another ten months until hiring that same temporary agency worker to fill the LSNYC position in January 2017.
From April 2017 through September 2017, LSNYC had a temporary agency worker filling in for its accounts payable/assistant bookkeeper, who was out on medical leave. Shortly before the LSNYC staff member returned to work, LSNYC management indicated to the union delegates that it wished to keep using the temporary agency worker. When informed by the union delegates that LSNYC needed to post the position if it wished to continue having someone do that bargaining unit work, LSNYC’s Chief Financial Officer resisted, stating that it was cheaper to continue paying a temp. LSNYC ultimately agreed to post for the position and the individual sent by the temporary agency was ultimately hired in November 2017 to continue performing essentially the same work as a LSNYC employee and union member.
In 2017, the union discovered that three individuals recently hired as full-time staff members in Brooklyn had been used as full-time agency temporary workers for extended periods of time prior to being hired as LSNYC employees. Again, no notice was given to the union when LSNYC obtained the placement of these individuals as agency temps. If these individuals had been LSNYC employees, two would have been paid union pay scale of $27.48 per hour as intake paralegals and the third would have been paid union pay scale of $27.50 per hour as a paralegal. Instead, LSNYC was paying the temporary agency $20-21 per hour, and the temporary agency was in turn paying the workers minimum wage, without health insurance or other benefits.
Despite the explicit negotiation of these two key provisions of our union contract to protect the union from being undermined and to protect vulnerable low-paid agency workers from exploitation, LSNYC continues to rely on low-wage workers from temporary agencies to fill long-term needs, while consistently failing to honor its obligations to notify the union when it secures workers from temporary agencies.
Over the past few years, LSNYC has responded to funding and grant demands by focusing its hiring on attorneys, while cutting corners on the necessary administrative staff required to support a non-profit that is growing rapidly. LSNYC has then used workers from temporary agencies to do this crucial administrative work. In this case, the maintenance of a full-time temporary agency worker for ten months in the finance department demonstrates that there is sufficient work to necessitate the hiring of a full-time employee on payroll.
A non-profit legal services organization dedicated to fighting poverty and seeking racial, social, and economic justice for low-income New Yorkers should not be exploiting low-wage workers from temporary agencies and undermining its staff union.
The Legal Services Staff Association union demands:
- That LSNYC within ten business days post for a new bargaining unit position in the finance department. The union suggests that this new position be funded by the 44% increase in IOLA funding just announced. It is our understanding that this increase of more than $3 million dollars on the $7.28 million-dollar base anticipated brings total IOLA funding for 2019 to $10.5 million in undesignated funding.
- That LSNYC refrain from terminating the use of the specific temporary agency worker, who has been placed at LSNYC for approximately ten months, and refrain from requesting that the temporary agency replace Ms. REDACTED with a different temporary agency worker. Ms. REDACTED is not at fault and simply replacing her with another temp does not remedy the contract violation.
- That LSNYC comply with its obligations to provide timely notice to the union of temporary agency workers, and immediately implement systemic mechanisms for tracking the use of temporary workers throughout LSNYC.
- Any other appropriate relief.
The Legal Services Staff Association further demands that LSNYC provide the following information within five business days:
- Please provide a spreadsheet listing all temporary agency workers, employees who work less than fifteen hours per week, or volunteers used by LSNYC in any office since January 2015, including:
- Name of the temporary agency used;
- Name of the worker;
- Hours worked per week;
- Start and end date of work;
- Amount paid per week;
- Job or role at LSNYC the worker performed; and
- Any other information in general ledger/budget code 52300.
- Please provide any and all documentation showing the notice given to the union prior to or upon the arrival of temporary agency workers, employees who work less than fifteen hours per week, or volunteers, since January 2015.
The union explicitly reserves the right to amend this grievance to include other such workers identified.
A written response is demanded within 5 business days, pursuant to CBA 8.2(C).
Best,
Sonja Shield
Union President
[1] LSNYC has continued to experience explosive growth. As of September 2018, LSNYC had grown to approximately 550 employees.