What’s a Seasonal Job

By | Employment Law | No Comments

What’s a Seasonal Job?

Seasonal employment means employment which can be conducted only during certain times of the year, and in no event does it include employment which extends for more than 14 weeks in a calendar year. Under these statutes, a door-to-door sales representative who works year-round is not a seasonal employee although commissions fluctuate during the year.  A claimant’s compensation rate is computed on the basis of a full-time work week, despite the seasonal nature of the claimant’s employment, where the claimant’s contract of hire provides for a forty-hour work week whenever work was available.

 

The second type of statute deals with employees in employments in which it is the custom to operate for a part of the whole number of working days in each year. Under these statutes, an itinerant construction worker whose work is dependent on the weather is a seasonal employee.

 

The third type of statute deals with occupations which are exclusively seasonal and therefore cannot be carried on throughout the year. These “exclusively seasonal” statutes exclude from the category of seasonal employments any occupation that is possible of performance and of being carried on through the entire 12 months.

 

Under some statutes, the term “seasonal worker” includes but is not limited to any employee who is employed directly in agriculture or in the harvesting or initial hauling of forest products. Other statutes compute the average weekly wage for agricultural employees as the weeks worked in agricultural employment divided into the total wages which the employee earned from all agricultural operations during the 12 calendar months immediately preceding the injury.

 

Under some statutes, a seasonal worker’s average weekly earnings are computed as in the case of continuous employment except that the number of hours of the normal full-time working day and the number of hours of the normal full-time working week shall be such hours and days in similar service in the same or similar nonseasonal employment. More commonly, average weekly wages are determined by dividing by 52 the seasonal worker’s earnings in the 52 weeks immediately preceding the injury. There are included in the worker’s earnings wages in one-time, concurrent jobs which are not covered by the workers’ compensation statute. Some statutes divide by 50 the total wages earned by the employee from all occupations during the 12 calendar months immediately preceding the accident, at least unless it is shown that during the year, by reason of exceptional causes, this method of computation does not fairly represent the employee’s earnings, in which case, the period for calculation is extended so far as to give a basis for the fair ascertainment of the average weekly earnings. Average monthly wages may be determined by dividing by 12 the total wages earned, including overtime, from all employment in any 12 successive calendar months preceding the injury which fairly represent the claimant’s employment pattern. Sometimes annual earnings are determined by multiplying the daily wage by the number of days in which it is the custom to operate in each year, but not less than 200. Average weekly wages are determined by dividing by 52. A statute has been held constitutional in permitting benefits for parttime and fulltime workers to be based on the average of wages for 13 weeks preceding the injury, but setting the measuring period for seasonal workers as wages earned during the 12 months preceding the injury.

 

Some statutes provide that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage. Such a provision denotes a legislative intent to apply the seasonal conditions provision to the construction and mining industries as a matter of law and to leave open the possibility of its application to other industries, subject to additional proof that the industry in question is one in which the hours of work are affected by seasonal conditions.

 

Seasonal condition, within the meaning of such a statute, is not limited to industries that actually cease operations during the winter months. It also applies to businesses that operate year-round but whose work hours are affected by climatic conditions such as rain, snow, and extreme cold. As applied to the construction industry, such a provision does not violate the equal protection clause of either the state or federal constitutions, since there is a rational distinction between part ime or irregular employment and construction industry employment where full-time employment is affected by seasonal conditions.

 

Under a statute providing that average actual earnings for four pay periods immediately preceding the injury are the employee’s wages except if for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods, it is proper, when work is sporadic and seasonal, to calculate on a larger scale than four pay periods.

 

Recommendations for Employers and Temporary Employment Agencies

By | Uncategorized | No Comments

Recommendations for Employers and Employment Agencies

(1) Select the temporary services provider carefully

Talk with business associates and get their recommendations for an established, reputable and qualified temporary services agency for your particular needs. Some agencies have specialties in providing a certain type of employee. Examine the agency’s familiarity with issues of joint employment and ask how the agency has handled joint employment questions when they have arisen previously.

Audit the agency’s employment policies; consider how carefully the agency screens potential employees and what training, if any, it provides for them. Although cost is certainly a factor, try to resist the urge to simply go with the cheapest provider, particularly if you require skilled labor. Remember, if the agency acts illegally toward an employee placed at your company, your company will almost certainly be sued as a joint employer. Thus, auditing your temporary agency’s policies is equally as important as auditing your own policies.

(2) Structure the relationship with the provider clearly.

If the principal goal of retaining a temporary employee provider is to distance the company from the potential liabilities associated with hiring employees directly, the company should require the temporary agency to assume most of the supervisory and fiscal responsibility for its temporary employees.

The provider should be the party to process applications, screen, test and hire applicants and should – to the extent possible – establish the terms and conditions of employment, including wages and benefits. Moreover, the provider should be the one to evaluate, reward, promote, discipline and discharge temporary employees. This requires a careful balancing of the employer’s needs and the potential for joint liability.

Unfortunately, an arrangement that best insulates an employer is not always the arrangement that best promotes business objectives. Employers should not be overzealous in drafting an agreement with a temporary service provider which may insulate it from joint liability if the cost is an unacceptable loss of operational control.

Generally speaking, the greater control the employer retains over the temporary employees, the greater his potential for liability will be. A conscious decision should be made regarding the appropriate balance between maintaining control and avoiding joint employment liability, and this decision should be memorialized by a written agreement.

(3) Monitor the relationship with the temporary employees

Ensure that both the temporary agency and the employee comply with employer policies expressed in handbooks, printed notices or memos.  Once the temporary employees arrive on site, consider the possibility of requesting that the employment agency provide them with their own supervisor to direct and oversee their work. This, of course, depends on the nature of the work and the number of temporary employees retained.

Employers with a unionized workforce and those concerned about accepting employees into an existing bargaining unit should minimize interaction between temporary employees and full-time employees so that all the employees will not be found to share a “community of interest” as defined by the NLRA, and thus be included in a collective bargaining unit.

Delineate the boundaries clearly. Distinguish temporary employees by giving them different name badges, a reduced number of company perks and restricted access to confidential company information or sites. They should also be paid from a source other than regular employee payroll. Do not interfere with a temporary employee’s opportunities for other employment if they arise.

(4) Scrutinize temporary employment relationships carefully.

Examine job classifications predominantly held by temporary employees for adverse impact on protected groups. Seek counsel regarding potential Social Security, tax and welfare benefits contributions due. Understand the potential liability existing in temporary service arrangements before entering one.

Establishing independent contractor relationships with temporary employees will not necessarily save the employer from liability. Many relationships that employers believe to be independent contractor relationships are actually employer-employee relationships. Consult the Internal Revenue Service’s new Worker Classification Manual for guidance in making the correct classification. Written independent contractor agreements are not dispositive of the nature of the relationship. Employers should ensure that the intent to create an independent contractor arrangement with an employee manifests itself in more than a label and an understanding.

(5) Audit company policies to ensure intended coverage.

Employers should carefully review their policies, particularly benefit policies, to ensure only those employees who are the intended beneficiaries are included. Many such policies are vague on the issue of employee coverage, and even vagueness will almost certainly be resolved in favor of the employees.

(6) Employment agencies should insist on a written contract

Employers may not demand a written agreement, but agencies should insist on one. Aside from assisting an agency to prepare an adequate defense in the event that an employee sues, written agreements bolster business by increasing the agency’s professional image and delineating agency and client-employer obligations and expectations.

Agencies should resist client-employer interference in employment matters, particularly where the client-employer has ceded control of the leased workforce to the agency. Apprising client-employers of the consequences of interference may be one effective way to maintain autonomy in decision making.

Finally, temporary service providers should carefully screen potential client-employers and resist accepting liability risks without first evaluating a client’s employment policies and procedures and obtaining written guarantees that the client has mandated nondiscrimination policies and employment at-will language in place.

Even if an agency’s policies and practices are above reproach, the agency may be jointly liable for the client-employer’s misconduct. The best way to handle such potential liability is to (1) make every reasonable effort to avoid the possibility of incurring it; and (2) have a clear agreement in place in which the parties agree to apportion the potential liability and defense costs in a mutually acceptable manner.

Source:

Andrews Sexual Harassment Litigation Reporter, March, 1997, Brent Giddens

Temp Employee Rights

By | Sexual Harassment | No Comments

Temp employees have rights too, even if the employer doesn’t recognize it.  During the holiday season it is more possible that companies hire temporary workers to handle the increase in staffing requirements, or perhaps to allow permanent employees to take a break during the holiday season.

In many cases, the company doesn’t hire the employee directly, but instead hire through a temporary staffing agency.  In essence, it would appear that the staffing agency is really your boss.

The question often becomes who is liable for improper or unlawful conduct or negligence upon a temporary employee.  In many cases, the temporary staffing company will remove an employee who the company is unhappy with temp employee.  In some cases the temp agency believes that it is the company who fired the employee who is responsible for the temp.

Employers should not and cannot fire a temporary employee assuming that the employee’s staffing agency will deal with the consequences. Often the staffing agency and the client-employer are both named as defendants if the temporary employee decides to sue the company. Co-defendants in this situation who have no written agreement between them may get a little shock when they find out who exactly is liable.

Temporary employees do have rights.  As an example, a temp agency cannot work with a company to hire only white temps.  They just cannot agree to discriminate.  Often, if not always, when a temporary employee sues, the employment agency and the client-employer are both named as defendants..

The EEOC gives specific guidelines regarding temporary employee guidelines.  (EEOC) gives specific guidelines regarding temporary employees:

Staffing firm workers are generally covered under the anti-discrimination statutes. This is because they typically qualify as employees of the staffing firm, the client to whom they are assigned, or both. Thus, staffing firms and the clients to whom they assign workers may not discriminate against the workers on the basis of race, color, religion, sex, national origin, age, or disability.

If you are being discriminated or being sexually harassed,

Speak up!  It’s important to the court that the temporary employee has told others of the discrimination or harassment.

Report the problem to both your temporary agency and the correct management chain at your assignment. They may tell you that because you are not a regular employee, you don’t have access to HR.  Not true.  If your temporary boss is sexually harassing you, then go ahead and report it to HR.  Report it to anyone in the chain of command.  If they don’t do anything, you can always report it to the EEOC.

In the meantime, ask to be reassigned. If you think you are being discriminated against, call us immediately at (786) 454-2411.  For more information about sexual harassment, please click here.

Oxycotin Lawsuit

By | Oxycontin Lawsuit | No Comments

Miami Lawsuit Against Opioid Manufacturers.

Miami has been one of the recent cities to join the federal lawsuit against opioid and Oxycontin manufacturers and distributors, blaming them for an overdose epidemic.

What claims did Miami make in the opioid and Oxycontin lawsuit? Miami claimed in the opioid epidemic that the opioid pharmaceutical companies made deceptive or false marketing about the opioid and Oxycontin prescription painkillers, including Purdue Pharma, Teva Pharmaceuticals and Walgreens.

The lawsuit claims that the opioid and Oxycontin manufacturers have been unjustly enriched by selling opioid and Oxycontin drugs, while harming the city and its services. Miami City Manager in a Miami Herald article regarding the Miami lawsuit against the opioid and Oxycontin manufacturers claimed that the pharmaceutical companies like Purdue, had “inflicted a great burden” on Miami and our nation.

Miami joins about 250 cities, counties and states that have sued opioid and Oxycontin makers, wholesalers, distributors and marketers accusing the companies of misleading doctors and the public by aggressively advertising the drugs as non-addictive and safe.

Broward and Palm Beach have also filed suit against the drug manufacturer of OxyContin.

What the opioid and Oxycontin manufacturers have denied the claims and asked for the lawsuits to stop until research can better assess long-term risks and benefits of opioids and Oxycontin .

Pharmaceutical Lawsuits: Opioid and Oxycontin manufactures.

The city’s lawsuit lists 17 defendants, including drug makers, mass distributors of prescription drugs and Walgreens pharmacies.

The Purdue Pharma complaint claimed that Purdue Pharma promoted abuse-deterrent formulations to Miami doctors and false promises that the drugs were safer than other opioids and Oxycontin .

Walgreens pharmacies are accused of failing to stop the diversion of opioids and Oxycontin for illicit use.

What you should do to join the lawsuit?

Contact us at The Miami Law Firm and join the class action lawsuit against those manufacturers, include Purdue Pharma to stop spreading addiction across our state, county and cities. Call for a free consultation at 786-454-2411.  Joining the class action is free.

Sexual Harassment: Unwelcome Advances at Work

By | Sexual Harassment | No Comments

What is “unwelcome” sexual harassment?

When considering sexual harassment claims, you should be sure that there was in fact some form of harassment that is truly unlawful.  At times, while a supervisor or co-worker’s acts and words may feel offensive, you still have to make sure that the meaning of offensive is something that falls within the law established under Title VII.

One of the first things to consider is whether the sexual conduct was “unwelcome”.  One might think that if the sex-related conduct was voluntary, that the employee did not participate against her will. This is really NOT a defense under Title VII sexual harassment claims.  The right way to consider if the sexual harassment was unwelcome is to ask whether the victim by her conduct indicated that the sexual advances were unwelcome, not whether her participation in the sexual act was voluntary.

Want more information about Sexual Harassment, see our web page regarding your rights here.

Child Custody Decisions

By | Child Custody | No Comments

One of the most critical issues in family law is when child custody is involved.  Parents may be going through divorce or separation and the relationship with the other parent isn’t good.  Fathers may feel that they have no child custody rights, especially if they are not even on the child’s birth certificate.  At the moment of separation, parents are concerned with who the child will live with, how can parents share child custody if their relationship isn’t really working out. Will both parents have the right to decide the important child custody issues such as where the child will go to school, what aftercare activities the child will participate in, etc.  In general, how the child will be raised.  This may require a parenting plan that is in the best interest of the child.  Traditionally courts have determined that the best interest of the child is to have both parents equally in the life of the child.  Sometimes however, the court may determine, based on circumstances, that sole parental custody is in the best interest of the child.

To top it off, child custody has the involvement of other family members such as the grandparents, who also care for the child and in many cases act as the daily care centers for the children.  In turmoil a parent may even consider granting child custody or at least temporary child custody to the grandparents till they can get back on their feet. The situation as it relates to child custody may not always be permanent, but in many cases child custody has a temporary solution, you just need to know what papers to file with the court and what to tell the judge when you are in front of him.

Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are custody decisions made? Following is a brief discussion in response to that question.

Divorce and Child Custody Decisions

Divorce always creates a challenge in child custody issues. In most cases parents are worried about how child custody and visitation will work out, especially when the parents are arguing and it appears that one or both are trying to manipulate the child during this critical moment. Divorce has other issues such as dividing marital property, child support and how that will affect the parents’ monthly income and ability to pay rent or a second mortgage on a new home. Child custody can usually be agreed upon by the parents, but unfortunately in many cases will need help from a mediator, or even an attorney who can help the parents get through child custody.

Parents can normally reach an agreement on child custody and visitation, as a result of some sort of informal agreement between them, or some out of court alterative resolution such as mediation or collaborative law.  Courts make determination and decisions on child custody proceedings always taking into account the best interest of the child.

Unmarried Parents and Child Custody

Today, many of the parents are unmarried and both worry about the wellbeing of the child as it relates to having a mother of a father involved in the child’s life.  Who will get physical sole custody? Who will be awarded child support?  How much child support will one parent get?  How do you determine child support?  Who has more rights in child support, the mother or the father?  What does a father have to do to prove he is the real father?  How does the father petition the court to make sure he is recognized as the true father?  When should he do it? Will the father get visitation of the child during the proceedings?  So many questions are unanswered that the process seems daunting. Child custody with so much going on, especially if you are not the proven father, appears to be a mess.

A family court judge will decide what is in the best interest of the child, just like they do for divorced couples.  The first step is for the father to prove paternity.  Yes, being on the birth certificate creates the presumption that the father is the true legal father, but without petitioning the court, a father who is unmarried may find it an uphill battle to get child visitation rights. That being said, the child custody and visitation rights of an unmarried couple may be easier than those couples who go through divorce because there is no marital property and other divorce-related issues.

If unmarried parents cannot reach an amicable agreement, then the family court judge will make his determination in the best interest of the child. The judge will issue a court order that while it can be modified, cannot be broken without legal consequences.  While this may be difficult for parents to understand, it does give parents in child custody proceedings a little normalcy and sets a standard for child custody.  The judge will also make the decision on who the child’s primary caregiver is during the child custody proceeding.

Non-Parental Child Custody Decisions

Sometimes, the grandparents or close friends need to step into action when the parents cannot afford to give proper child care to the child.  Relatives like grandparents, uncles, aunts, and even close family friends may be requested to take temporary custody or they may fight for permanent custody. Third party child custody is more difficult, but if parent’s consent, then it may be a viable solution, and the court, depending on the state, may allow this as a child custody option.

Attorney consultations are free, take advantage of it.

Child custody battles take a toll on all parents, and sifting through online information is challenging at best.  Once you get to the court you will find a sea of forms that are part of child custody you never thought you would be required to fill in but are.  At The Miami Law Firm you can get a free consultation and the Law Firm will work with you on setting a payment plan you can afford where the child custody attorneys can start your legal proceeding from day one without needing all the money up front.

Hotel Bar Fight

By | Hospitality | No Comments

The Scenario: A Hotel bar fight…

A man is at a bar inside a hotel with his friend and his sister.  His friend encounters bar patron in the bar and they get into a fight.  The bar patron stabs the friend, and the man jumps in to help, but is also stabbed.  There was a security guard on site who did nothing during the 2-minute altercation.

The question becomes if the hotel is liable through the lack of action of his security guard to stop the fight and therefore prevent the stabbing of the man and his friend.

The Law:  Hotel has to use ordinary care…

A motel operator is under a continuing legal duty to its patrons to use ordinary care to keep the premises in a reasonably safe condition and protect them from harm due to reasonably foreseeable risks of injury.

Nevertheless, while a hotel operator has the duty to use reasonable care for the protection of patrons, the hotel is not the insurer of the safety of its patrons. Nor is the hotel liable for the conduct of a third party on the premises which causes injury, unless the injurious conduct is reasonably foreseeable to the hotel; that is, unless the hotel has knowledge of the danger involved and has had an opportunity to protect against it, the hotel may not be held liable.

The Question:  Is the bar fight foreseeable?

The question of foreseeability in a negligence action is generally a question for the trier of fact.

Is a 2-minute fight foreseeable?

The hotel claimed that the fight was “unprovoked and unanticipated” and was accomplished “within two minutes” and that it was not a sufficient basis for such a finding to be foreseeable.

The Supreme Court Ruled:

While knowledge of a particular person’s propensity for violence has been considered competent evidence of foreseeability, the Supreme Court rejected the argument that “proof of foreseeability should be limited by law to evidence of actual or constructive knowledge of a particular assailant’s propensity for violence.” The supreme court added, “[a] tavern owner’s actual or constructive knowledge, based upon past experience, that there is a likelihood of disorderly conduct by third persons in general which may endanger the safety of his patrons is also sufficient to establish foreseeability.”

In this case, the Court found that the hotel was NOT relieved of liability by this intervening act as a matter of law unless the patron’s criminal attack was unforeseeable.

The evidence:

911 records were pulled where the hotel had called 911 in many occasions, and that police reports confirmed the danger and foreseeability of another violent act even if the prior acts were not as violent as the current act.

If you have a similar problem, whether the hotel or the patron or the man, please give us a call for a free consultation. We can help you find the right law, and help you win your case.  Call (786) 454-2411 today.

The Miami Law Firm normally works on contingency, or a percentage of your claim.  In addition, we also offer unbundled legal services as well as layaway plans, payment plans and document preparation for those who want to go to court without a lawyer.

Free Case Evaluation

Tell us what you need and we will provide you with a free legal case evaluation. All requests are completely confidential.

Do You Have to Give Back the Engagement Ring?

By | Family Law | No Comments

Who gets to keep the engagement ring?

 

That seems a trivial question, but it appears that many people ask that if they feel that they were taken advantage of when the spouse giving the ring backed out of the commitment.

According to the law in some jurisdictions, the ring is a conditional gift presented in contemplation of marriage.  That if the condition is not met, that if the condition isn’t met, that the person giving the ring is entitled to it.

That brings up many questions about whether someone should return an engagement ring if it was the person giving the ring that did something to break the engagement and therefore the marriage.  In some states the law says that gifts used to induce a person to accept the offer of marriage is not recoverable.  They just can’t ask for it back. However, if the ring was accepted by someone who just used it to mislead another into giving her or him the ring, then it the ring can be recovered.

In many states the court looks at who it was that broke the agreement to get married.  If it was the person giving the ring, the court will say that the ring does not have to be returned, and if the person breaking the agreement to get married broke the agreement, then that person should give the ring back.

However, in a modern approach, other courts have held that the general rule that the ring should be returned applies regardless of fault.  In modern times, it is not uncommon for both parties to contribute financially to the purchase of an engagement ring. In that case, the Court may determine that the value each one put in goes back to that person.

What if the ring is “lost”?  The Courts may determine that the person who lost the ring should give the person who gave it the value of that ring.

An increasing number of jurisdictions have adopted statutes abolishing actions for a breach of contract to marry. The states are split however on whether these statutes prohibit actions seeking the restitution of gifts given in connection with the engagement to marry; most courts allow the recovery of engagement gifts, but not all.

What most courts have agreed on however is that you cannot recover a ring that was given in contemplation of divorce.

Wanna know more about your rights to the ring and other marital or premarital property?  Give us a call, the consultation is FREE.  The Miami Law Firm 786-454-2411, vbao@thelawmiami.com.

Free Legal Lunch & Learn for Hotels

By | Hospitality | No Comments

Go Ahead Book Your FREE Lunch and Learn Legal Contracts Session – We’ll Come to You!

We will meet your team in a free 1.5 hour Lunch & Learn at your hotel or resort and cover the essentials of law that every general manager, DOSM, Catering, or Sales Associate should know before presenting a contract to clients.  We will teach your team while working from your current group, incentive, tour operator, or trade contract.

Here’s what we’ll cover:

  1. Contract Formation: While it might seem simple, this is key to understanding the reasons why your team entered into the contract and why the client entered into the contract as well.
  2. Standard Contract Clauses: We will review some of the most common clauses on a contract and what that means for your protection.
  3. Your Contract: We will review your current contract and leave behind some of the most common clauses that hotels use every day behind such as attrition, force majeure, reduction of group sizes, price changes, exclusivity, buyouts, and more.  For this you will just have to send us your contract in advance so we can touch upon the key elements that make it binding.
  4. Q&A: Here is you and your team’s chance to ask a lawyer your question.

To schedule your complimentary Lunch & Learn, call The Miami Law Firm at 786-454-2411 or email us at vbao@thelawmiami.com .  Just mention the Legal Lunch & Learn for Hotels and we will set you up right away.

We look forward to meeting you and your team, and hope this might help you reduce legal worries and protect you from unneeded litigation expenses.

Oh, did we mention that we won’t pitch you our services?  We will just leave you with a business card so you can call us if you have any further questions or needs.

Request For Free Legal Lunch & Learn

We are offering a free Lunch & Learn at your hotel for you and your staff. We will review contract essentials and your own teams contract and answer any questions you may have. Yup, its free with no future obligations.

Terminating Parent Rights While in Prison

By | Child Custody | No Comments

One of the ways a parent’s rights may be terminated is when the parent of a child is incarcerated and either:

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. The period of time begins on the date that the parent enters into incarceration;

2. The incarcerated parent has been determined by the court to be a violent career criminal or a sexual predator or has been convicted of first degree or second degree murder, a sexual battery that constitutes a capital, life, or first degree felony; or

3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and terminating parental rights of the incarcerated parent is in the best interest of the child.

When determining harm, the court shall consider the following factors:

a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior.
e. Any other factor the court deems relevant.

Call us today for a free consultation at 786-454-2411.

Recommendations for Employers and Temporary Employment Agencies

By | Uncategorized | No Comments

Recommendations for Employers and Employment Agencies

(1) Select the temporary services provider carefully

Talk with business associates and get their recommendations for an established, reputable and qualified temporary services agency for your particular needs. Some agencies have specialties in providing a certain type of employee. Examine the agency’s familiarity with issues of joint employment and ask how the agency has handled joint employment questions when they have arisen previously.

Audit the agency’s employment policies; consider how carefully the agency screens potential employees and what training, if any, it provides for them. Although cost is certainly a factor, try to resist the urge to simply go with the cheapest provider, particularly if you require skilled labor. Remember, if the agency acts illegally toward an employee placed at your company, your company will almost certainly be sued as a joint employer. Thus, auditing your temporary agency’s policies is equally as important as auditing your own policies.

(2) Structure the relationship with the provider clearly.

If the principal goal of retaining a temporary employee provider is to distance the company from the potential liabilities associated with hiring employees directly, the company should require the temporary agency to assume most of the supervisory and fiscal responsibility for its temporary employees.

The provider should be the party to process applications, screen, test and hire applicants and should – to the extent possible – establish the terms and conditions of employment, including wages and benefits. Moreover, the provider should be the one to evaluate, reward, promote, discipline and discharge temporary employees. This requires a careful balancing of the employer’s needs and the potential for joint liability.

Unfortunately, an arrangement that best insulates an employer is not always the arrangement that best promotes business objectives. Employers should not be overzealous in drafting an agreement with a temporary service provider which may insulate it from joint liability if the cost is an unacceptable loss of operational control.

Generally speaking, the greater control the employer retains over the temporary employees, the greater his potential for liability will be. A conscious decision should be made regarding the appropriate balance between maintaining control and avoiding joint employment liability, and this decision should be memorialized by a written agreement.

(3) Monitor the relationship with the temporary employees

Ensure that both the temporary agency and the employee comply with employer policies expressed in handbooks, printed notices or memos.  Once the temporary employees arrive on site, consider the possibility of requesting that the employment agency provide them with their own supervisor to direct and oversee their work. This, of course, depends on the nature of the work and the number of temporary employees retained.

Employers with a unionized workforce and those concerned about accepting employees into an existing bargaining unit should minimize interaction between temporary employees and full-time employees so that all the employees will not be found to share a “community of interest” as defined by the NLRA, and thus be included in a collective bargaining unit.

Delineate the boundaries clearly. Distinguish temporary employees by giving them different name badges, a reduced number of company perks and restricted access to confidential company information or sites. They should also be paid from a source other than regular employee payroll. Do not interfere with a temporary employee’s opportunities for other employment if they arise.

(4) Scrutinize temporary employment relationships carefully.

Examine job classifications predominantly held by temporary employees for adverse impact on protected groups. Seek counsel regarding potential Social Security, tax and welfare benefits contributions due. Understand the potential liability existing in temporary service arrangements before entering one.

Establishing independent contractor relationships with temporary employees will not necessarily save the employer from liability. Many relationships that employers believe to be independent contractor relationships are actually employer-employee relationships. Consult the Internal Revenue Service’s new Worker Classification Manual for guidance in making the correct classification. Written independent contractor agreements are not dispositive of the nature of the relationship. Employers should ensure that the intent to create an independent contractor arrangement with an employee manifests itself in more than a label and an understanding.

(5) Audit company policies to ensure intended coverage.

Employers should carefully review their policies, particularly benefit policies, to ensure only those employees who are the intended beneficiaries are included. Many such policies are vague on the issue of employee coverage, and even vagueness will almost certainly be resolved in favor of the employees.

(6) Employment agencies should insist on a written contract

Employers may not demand a written agreement, but agencies should insist on one. Aside from assisting an agency to prepare an adequate defense in the event that an employee sues, written agreements bolster business by increasing the agency’s professional image and delineating agency and client-employer obligations and expectations.

Agencies should resist client-employer interference in employment matters, particularly where the client-employer has ceded control of the leased workforce to the agency. Apprising client-employers of the consequences of interference may be one effective way to maintain autonomy in decision making.

Finally, temporary service providers should carefully screen potential client-employers and resist accepting liability risks without first evaluating a client’s employment policies and procedures and obtaining written guarantees that the client has mandated nondiscrimination policies and employment at-will language in place.

Even if an agency’s policies and practices are above reproach, the agency may be jointly liable for the client-employer’s misconduct. The best way to handle such potential liability is to (1) make every reasonable effort to avoid the possibility of incurring it; and (2) have a clear agreement in place in which the parties agree to apportion the potential liability and defense costs in a mutually acceptable manner.

Source:

Andrews Sexual Harassment Litigation Reporter, March, 1997, Brent Giddens