Magazine article Supervisory Management

How to Avoid Temporary Headaches

Magazine article Supervisory Management

How to Avoid Temporary Headaches

Article excerpt

Today, hiring temporary workers opens up as huge a spectrum of legal problems as does employing full-time staff.

For instance, can you be sued for complaining to the agency about a temp's performance, or for asking that he or she be taken off your job? Who is responsible if the temp is injured while at your company--you or the agency? If the agency is mistreating the temp, could you be held liable? How can you protect the confidentiality of your secrets and records from a temp who moves from business to business?

According to John P. Furfaro, a lawyer with the New York City-based firm of Skadden, Arps, Slate, Meagher & Flom, the essential question to answer is, "Who does the temp work for--me or the temp agency?" Answers to the other questions flow from the answer to that one.

Let's examine some of these questions in detail.

Who does the temp work for? The short answer is, "both you and the agency." Legally, this principle is known as the "loaned servant doctrine." The question of which employer bears a greater responsibility, according to Furfaro, depends on the economic relationship between the temp and his or her various employers. There is no question that the agency is the temp's employer; the real question is whether the job site employer is his or her employer as well. You have to put the question to an "economic reality test." Who controls the job function? If it's the job site employer, both you and the agency may be liable.

Can you be sued by a temp for on-the-job discrimination--after all, he or she works for the temp agency, not you? If a site employer says, "I don't want this particular person" because of race, sex, age, etc., it could be said that the site employer is interfering with the relationship between the employee and the agency, and thus the site employer could be liable.

If the agency mistreats a temp, can you be sued for its wrongdoing? If the temp works on your premises and is being mistreated by someone at the agency, you could theoretically be liable as a "secondary employer." If, for instance, a temp complains to you about being harassed by someone at the agency and you do nothing about it, you could be liable. …

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