Temporary workers—whose employee is this?
Q: We use a lot of workers that we obtain from a temporary services provider. What employment obligations do we have with respect to these workers since they’re not really “our” employees?
A: You may not consider employees that you obtain from a temporary services company to be your employees, at least until you hire them on a permanent basis, but the law might. And, different laws apply differently to the temporary employment relationship, for example:
- Federal Family and Medical Leave Act (FMLA): Under the FMLA, you will be considered a joint employer of a temporary employee, alongside the temporary staffing agency. Though the primary employer (i.e., the staffing agency) is responsible for providing required notices, granting leave, maintaining health benefits, and restoring the employee to work at the end of leave, the secondary employer (i.e., the company using temp employees) is responsible for accepting the returning employee as long as it is still using temps from the agency and the agency chooses to place the returning employee with the secondary employer. If you later hire a temporary worker as a regular employee, then the time he or she began working for you as a temp, even while on the staffing agency’s payroll, counts toward the 12 months and 1250 hours of work required for FMLA eligibility.
- Form I-9: You may rely on the staffing agency to complete the Form I-9 for your temporary workers, but be sure you have spelled out this obligation in your contract with the agency, and ask for indemnification in the event that you incur penalties or other damages due to a worker who turns out to be undocumented.
- Disability accommodation: Under the federal Americans with Disabilities Act (ADA) and state disability laws, both you and the staffing agency will have an obligation to reasonably accommodate a disabled employee.
- Nondiscrimination and nonharassment: Make sure you and the staffing agency agree on how to investigate and respond to complaints of discrimination or harassment from a temporary worker. If the individual files a complaint, both companies may be jointly liable. Ensure that each and every temporary employee receives a copy of your nonharassment policy, including directions for reporting complaints, and be sure you obtain a signed acknowledgement of receipt.
- Job reinstatement following military leave: Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), the obligation to reinstate an employee whose employment is controlled by more than one employer, may fall on you or on the temporary staffing agency, depending on the circumstances and which entity holds the opportunity for reinstatement.
- Providing health benefits after 2014: Under the proposed rules for the employer shared responsibility mandate of the federal Affordable Care Act (ACA), “employee” is defined as a common law employee. Common law employees are those whose work you direct and control. Depending on your arrangement with the staffing agency, the ACA might consider your temporary workers to be your employees for purposes of either providing health coverage or paying a penalty.
For more information, including how other laws apply to temporary employees, check out our Legal Guide, “Temporary Employees” (1261), or contact your Vigilant representative.