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Terry A. Venneberg Weekly

Terry A. Venneberg Weekly (12/16/19)

Topic of the Week  Temporary / Leased Employees

  • The temp agency I'm working for has very minimal retirement benefits, while the company where I'm working has an excellent package of retirement benefits. As a temp employee, am I eligible for coverage under the employer's retirement plan
  • Who Can Unions Representing Temporary/Leased Workers Negotiate With
  • The conditions where I work are unsafe. Am I protected by health and safety laws?
The temp agency I'm working for has very minimal retirement benefits, while the company where I'm working has an excellent package of retirement benefits. As a temp employee, am I eligible for coverage under the employer's retirement plan?

You are legally entitled to be treated like a regular employee by the recipient employer for retirement plan purposes if you are a "common law employee" of the recipient employer, regardless of any pension plan of the leasing organization. A "common law employee" is defined as a worker who performs services for an employer who has the right to control the result of the work and the way in which it is done.

If you are not a common law employee, but have worked for the recipient employer on a full-time basis for at least one year, you must also be treated as a regular employee for retirement plan purposes. However, in that case, the recipient employer does not have to cover you under its plan if you are covered by a suitable plan through the leasing organization.

Please note that you are still subject to any requirements that regular employees must meet, such as job tenure and minimum hours requirements.

Who Can Unions Representing Temporary/Leased Workers Negotiate With?

In August, 2015, the National Labor Relations Board issued a ruling expanding the liability of companies who utilize temporary or leased workers to staff their facilities. Now these parent companies may be considered a joint-employer of the workers at their facilities/franchises. This has significant implications for unions negotiating on behalf of temporary/leased employees. For instance, if temporary or leased employees working at a franchise are able to successfully unionize, the union will have the power to negotiate on their behalf, not only with the owner of the individual franchise, but also with the franchise's corporate headquarters. However, any concessions made by the corporate headquarters will only apply to those employees specifically represented by the union in the negotiations, not all similarly situated employees of the corporation.

The conditions where I work are unsafe. Am I protected by health and safety laws?

Yes. The Occupational Safety and Health Act (OSHAct) requires employers to maintain a safe and healthy workplace for their employees. The act does not distinguish contingent workers from other employees and covers contingent workers except for independent contractors and other self-employed workers. The party (whether the recipient employer or temp agency/leasing firm) responsible for unsafe conditions in a workplace will be liable for OSHAct violations.

Thought of the Week

"NLRB’s decision to uphold unpaid internships, while disappointing, is not particularly surprising. A perhaps more far-reaching impact of the decision, however, is the part of the decision saying that paid employees are not protected if they show solidarity with people who are not classified as employees. Other types of nonemployees, such as gig workers and other independent contractors, will not be able to rely on support from employees within an organization to advocate on their behalf. Uber employees, for example, can potentially be disciplined or terminated for advocating on behalf of nonemployee drivers who want to be classified as employees. This could lessen the pressure on employers to make changes."

–Molly Lee Kaban | Attorney at Harrison Bridgett in San Francisco

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

List of the Week

from American Staffing Association

Staffing Industry Statistics

  • More than three million temporary and contract employees work for America’s staffing companies during an average week.
  • During the course of a year, America’s staffing companies hire nearly 17 million temporary and contract employees.
  • While permanent employment is a top priority for most staffing employees, about one in five cite scheduling flexibility as a key reason for choosing temporary and contract work.

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