Temporary Employees

Temporary employees give you flexibility in meeting your staffing needs, but recent years have brought new legal pitfalls for the unwary HR professional.

Correctly classify temporary workers

Incorrectly classifying employees as temporary workers can be a costly mistake. If a court decides they're really regular employees, you'll have to give them the benefits they would have received if they had been classified correctly. This could include health insurance, life insurance, retirement benefits, and stock options.

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Employment laws regarding temps

Under many laws, temporary employees are treated as having two employers – the staffing agency and you. Both companies must come with these laws. In general your company's liability under federal and state equal employment opportunity laws – such as Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) forbidding discrimination, harassment, and retaliation – is the same for temps as it is for your regular employees.

If a temporary worker is disabled, your company and the staffing agency are jointly responsible for accommodating her disability and not discriminating. Even if the staffing agency doesn't hold up its end of the bargain, you still must try to accommodate.

The same principle applies under the National Labor Relations Act (NLRA), the Fair Labor Standards Act (FLSA), worker's comp and other employment laws such as the Occupational Safety and Health Act (OSH Act).

The typical contract with a staffing firm specifies which entity provides workers' comp insurance for temporary employees. You should make sure that someone else does. Otherwise your state's law might allow an injured temporary worker to sue your company for negligence and collect much more than workers' comp would allow.

Staffing agency's tax mistakes

Your company could be liable if a staffing agency is supposed to pay employment taxes to the IRS but doesn't. Your potential liability depends on the taxes involved and your contract with the staffing company.

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Related articles on Temporary Employeesfrom the State Employment Law Letters
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HR Tools for Temporary Employees

• HR Executive Special Report - How to Manage Your Aging Workforce
  (available for purchase by nonsubscribers)
• HR Executive Special Report - How to Make Background Checks Part of Your Hiring Process
  (available for purchase by nonsubscribers)
• HR Executive Special Report - How to Evaluate & Manage Employee Health Plans
  (available for purchase by nonsubscribers)
• HR Executive Special Report - How to Comply with COBRA Without Getting Bit
  (available for purchase by nonsubscribers)
• HR Executive Special Report - Overtime Ins and Outs: How to Comply with the FLSA
  (available for purchase by nonsubscribers)
• HR Executive Special Report - Overtime Revisited: The DOL's Final Regulations
  (available for purchase)
• HR Executive Special Report - A Legal Guide to Successful Hiring
  (available for purchase by nonsubscribers)
• Sample Policy - Wage and Payroll Administration
• Sample Policy - Employee Classification
• Sample Policy - Overtime
• Sample Policy - Compensatory Compensation of Exempt Employees
• Sample Policy - Time Reporting