Co-Employment
Co-employment
is a commercial relationship between two or more
businesses, such as a staffing firm and its
client, in which each has actual or potential
legal rights and obligations as an employer with
respect to the same employee or group of
employees.
Clients
are generally co-employers of temporary or
contract employees because they direct the
day-to-day activities of the employees and
determine how long they work. However, each case
must be examined on its particular facts to
determine whether an employment relationship
exists.
Is Your Work Site Safe?
Staffing firm clients have
primary responsibility for maintaining safe
worksites, while staffing firms have a
responsibility to take reasonable steps to
determine the conditions at the worksite, provide
generic safety information, and advise temporary
and contract employees how to obtain more specific
information regarding protection from hazards at
the client site.
OSHA Record-Keeping
As a general rule, it is the
utilizing employer (the client) that must keep and
maintain injury and illness records required by
the Occupational Safety and Health Administration.
Temporary or Part-Time
Employee?
There are two key differences
between temporary and part-time employees:
part-time employees generally work less than a
full-time workweek (i.e., less than whatever
number of hours in a week the employer considers
to be full-time), and also work a regularly
established schedule. Eight out of 10 staffing
employees work full time, about the same as the
rest of the work force.
Staffing Employees and the
Family and Medical Leave Act
Under
the Family and Medical Leave Act, if a staffing
firm client is still using the services of the
staffing firm to fill the same or equivalent
position of a staffing employee who previously was
assigned to the client when that employee returns
from FMLA leave, the staffing firm must reinstate
the employee immediately, even if this means
removing another employee from the job. Moreover,
the client generally must accept the returning
employee.
If
the staffing employee is eventually hired by the
staffing client, the employee’s time on
temporary or contract assignments with the client
generally will count toward satisfying the
employee’s eligibility requirements under FMLA
(i.e., the 1,250-hours-worked and
12-months-of-service tests).
Who Handles Work
Eligibility Status?
Staffing
firms are required to verify their temporary or
contract employees’ work eligibility. Clients
are under no obligation to verify work eligibility
status of temporary or contract employees provided
by staffing firms.
Joint Responsibility for
ADA Compliance
Staffing
clients generally have a joint obligation with
their staffing firms for compliance with the
Americans With Disabilities Act. This obligation
includes sharing the cost of providing reasonable
accommodations to employees with disabilities.
Joint Liability Under the
National Labor Relations Act
Both
staffing firms and clients may be liable when
clients’ unfair labor practices violate the
National Labor Relations Act. To avoid such
charges, staffing firms and their clients should
not discriminate against employees or applicants
on the basis of union membership.
Excluding Staffing Firm
Employees from Benefits Liability
Staffing
firm clients that arbitrarily limit the length of
temporary or contract employee assignments to
avoid benefits liability may be unnecessarily
disrupting their business operations. Clients can
avoid benefits liability by drafting their benefit
plans clearly and explicitly to exclude staffing
firm employees.
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