There are a number of excellent reasons employers hire temporary workers (temps). “But Mom, everyone else does it.” On the other hand, if you’re looking for more specific and persuasive reasons, ask your friendly staffing agency’s sales rep. He (or she) will be only too happy to list them for you. For example, using temps allows employers to convert fixed costs to variable; eliminate overtime; reduce training, scrap, and rework costs; shift administrative burden (processing payroll and benefits); prevent unemployment claims; and reduce the risk of making a bad hire — and that’s just a few for starters. The purpose of this article, however, isn’t to tout the benefits of employing temps. It’s to add a number of “non-reasons” most likely omitted from your friendly sales rep’s list, especially as peak season approaches for shippers.
Let’s begin by noting that both the Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH) define temporary workers as “those supplied to a host employer and paid by a staffing agency, whether or not the job is actually temporary.” Also note that staffing agencies and host employers are both considered joint employers. Therefore, both may be (and most likely will be) held responsible for providing and maintaining a safe work environment for those workers.
Depending upon workplace conditions, their obligations will vary or, in some cases, overlap. OSHA guidelines recommend staffing agencies and host employers “may better protect temporary workers through mutual cooperation and collaboration.” They suggest that these obligations should (not shall) be described in the agreement or contract between the two.
Of course, all employers of temps have such an agreement or contract. If you do, dear reader, does yours equitably (operative word) describe, assign, and/or allocate responsibility for such obligations? Note that staffing agencies almost certainly will offer host employers their standard staffing agreement — “All our clients use this, so you should too.” Translation: “We paid our attorneys a pot full of $$ to draft it and it ^&%$ well better favor us.”
Please don’t be misled by the fact that an earlier paragraph cited only OSHA/NIOSH best practices. An 11-page model staffing agreement downloaded from the internet lists (in addition to federal, state, and local labor and employment laws) 11 separate codes and acts with which host employers and/or staffing agencies must comply. Note that these are in addition to those required/recommended by OSHA/NIOSH. Both types of employers are already responsible for compliance with best practices, standards, codes, regulations, and rules governing their full time employees. The elephant in the room, however, is when push comes to shove, which one (or both) will be held accountable for any compliance failures?
On August 27, 2015, the National Labor Relations Board (NLRB) issued a 3-2 decision in the Browning-Ferris Indus (BFI) of California, et al. v. Sanitary Truck Drivers case. They ruled that BFI was a joint employer of workers provided by Leadpoint (a staffing agency) at a BFI recycling plant. Both BFI and Leadpoint employed supervisors who directed the work of their respective employers. BFI established the work process and set the plant’s working hours; Leadpoint conducted the hiring, firing, and payroll of employees they supplied to BFI. BFI paid Leadpoint the cost of each worker’s labor plus a markup. Note that the significance of the NLRB ruling is that previously a joint employment relationship required an entity to demonstrate actual and direct control over workers. However, under the standard announced in the BFI decision, a company is a joint-employer even if it only exercises indirect control over working conditions or has “reserved authority” to do so.
Bottom line: Employers using workers supplied by a staffing agency should
• Obtain guidance from their in-house corporate attorney when negotiating contracts with temp employee staffing agencies;
• Create and maintain a guidance manual and lesson plan developed by a detailed internet research and require all supervisors to attend a formal instructional class on the topic;
• Communicate work rules to employees and train them accordingly;
• Enforce the rules and practices; and
• Document, document, document.
Several points regarding documentation: 1) Maintain (file) documentation so that you may retrieve information required by auditors without also supplying information not specifically requested. 2) Ensure that any record of regulatory non-compliance is accompanied by documentation of action taken to correct the matter. 3) Establish a company documentation policy and purge files on a regular basis – note this requires a knowledge of regulatory agencies’ documentation retention requirements.
Bud Cohan is adjunct instructor at Columbus State Community College.
