Cornerstone - Summer 2016 - (Page 15)

Temporary Employees Who Really is the Employer? By Anthony G. SterGio, ShAreholder, AndrewS MyerS, PC IT SEEMS MANy CONTrACTOrS AND subcontractors ("client companies") believe they aren't liable for employer-related claims and/or Occupational Safety And Health Administration citations and penalties related to temporary workers contracted from a temporary labor provider ("staffing company"). Unfortunately, this is not the case. Often, client companies that secure assigned temporary employees from staffing companies will actually be considered either the sole employer or a joint employer, along with the staffing company. The Department of Labor and the Texas Workforce Commission will likely deem a client company a single employer if it is found that the staffing company is merely "payrolling" for the client company-where the staffing company performs payroll functions with respect to the temporary employees but does not exert employerlike control over the employees. In such cases, the client company will be responsible for all claims and OSHA-related actions related to the temporary employee. A joint-employer situation is likely found where the staffing company and the client company both possess: (1) the ability to hire and fire the relevant employees; (2) promulgate work rules and assignments and set the employees' conditions of employment, compensation, benefits, and work schedules, including the rate and method of payment; (3) are involved in day-to-day employee supervision, including employee discipline; and (4) have the ability to control employee records, such as payroll, insurance, or taxes. A determination of whether or not a joint-employment relationship exists is not dependent on any single Summer 2016 criterion, but rather the entire relationship is to be viewed in its totality. In such situations, the staffing company and the client company both are likely to be held liable for unemployment claims, discrimination claims and wage-and-hour claims lodged by the temporary employee. In the Department of Labor's most recent commentary on joint-employer status the agency held (with respect to wage and hour law) that a single individual may be simultaneously considered an employee of more than one employer under the Fair Labor and Standards Act (FLSA). In such cases, the employee's work for the joint employers is considered as one employment for purposes of the Act, and the joint employers are individually and jointly responsible for FLSA compliance. A determination of whether joint employment exists must be based upon all the facts of the particular case. For instance, two employers may both supervise the same employee or one may hire and set the pay rates while another has authority to supervise or fire the worker; both scenarios may represent a jointemployment relationship. With respect to OSHA, when temporary employees are involved in an accident or exposed to unsafe conditions while under the supervision of the client company, OSHA will almost certainly assess fines and citations against the client company. This is distinct from a situation where a specialized trade subcontractor is brought in to perform particular facets of the project with its own self-supervised labor force. In that scenario, if an injury occurs or is caused by a hazard created and controlled by the specialized subcontractor, OSHA is likely to cite the subcontractor and the general contractor could avoid citation. While contractors likely can't contract around the imposition of liability related to temporary employees, staffing agreements should set the ground rules for determining the party responsible for specific aspects of the employment, and who will be responsible for paying for the defense of employer-related claims and any liability ultimately imposed. ■ Board certified in labor and employment law by the Texas Board of Legal Specialization, Anthony "Tony" G. Stergio has extensive experience in the defense of State and Federal employment discrimination claims, wage and hour compliance, OSHA compliance and contests, noncompetition agreements and employment policy design and review. 15

Table of Contents for the Digital Edition of Cornerstone - Summer 2016

From the Chairman of the Board, Bill Scott, III
From the President/CEO, Jerry Nevlud
In Memoriam: Jack Marshall and Dave Chapman
Case Study: A Look at How Vaughn Construction Rebuilt UTMB’s Galveston’s Clinical Services Wing After Hurricane Ike
Temporary Employees: Who Really is the Employer?
Successful Workforce Development Practices: An Update on the UpSkill Houston Initiative in the Construction Sector
AGC Houston Presents 2016 Patrick J. Kiley Excellence in Leadership Scholarship Awards, Standard of Excellence Recipient and Recognizes Leadership AGC Class of 2016 Graduates
Scenes from the 25th Annual Barbecue Cook-Off and Fair
Past Events
Member News
Index of Advertisers/

Cornerstone - Summer 2016