Managing Co-Employment Risk

Transcription

1 Managing Co-Employment Risk Michael W. Droke Dorsey & Whitney LLP Labor & Employment Practice Group Office: (206) Dorsey & Whitney LLP 1

2 Agenda What is Co-Employment? Being a Staffing Firm is Challenging Being an Employer is Challenging The EEOC Makes it Even More Challenging Navigating the Devil and the Deep Blue Sea Risk management for both customer and staffing firms 2

3 What is Co-Employment? Co-Employment Both the staffing firm and its customers frequently share some or all of the obligations of an employer. Each can potentially be held liable for the bad acts of the other. Given recent cases deciding when a worker is an independent contractor versus an employee, temporary workers are more likely than ever to be treated as co-employees. 3

4 Co-Employment Becerra Becerra v. Expert Janitorial, 181 Wn.2d 186 (2014): Fred Meyer outsourced janitorial services, which hired independent contractor janitors; wage claim under WMWA. HELD: WMWA could apply to joint employers without formal employment relationship; economic reality test applied. 4

5 Co-Employment Currier v. Northland Services, Inc., 182 Wn. App. 733 (2014): Driver sued for obscene, racist and sexist remarks, and retaliation. Company held that Washington Law Against Discrimination didn t apply because worker was an independent contractor. HELD: Even where the worker is deemed an independent contractor, the company can still be held liable. 5

6 The DOL s Position - Vertical d/flsa/vertical_joint_e mployment.pdf 6

7 The DOL s Position - Horizontal horizontal_joint_employment.pdf 7

8 Being an Employer is Challenging 8

9 Being an Employer is Challenging Just a few examples: Discrimination and Retaliation Claims Accommodation Under the Americans With Disabilities Act Conducting HR Investigations 9

10 Being a Staffing Firm is Challenging 10

11 Being a Staffing Firm is Challenging Placing the right employees with right qualifications with the right customers. Quickly responding to customer concerns and requests. Coaching your employees to provide top flight service in a wide range of working environments. 11

12 Being Both is REALLY Challenging Everything an employer does is more difficult for a staffing firm. Customers have control over the working environment. Staffing firm has no direct control over customers employees. Access to s, notes, and other usual sources of information is limited. 12

13 The EEOC Makes it Even Harder EEOC Guidance: Application of EEO Laws to Contingent Workers Placed by Staffing Firms Staffing firms are on the hook for their customers bad behavior. To avoid liability, the staffing firm has to take a laundry list corrective actions including refusing to place new employees with the customer until the discrimination is remedied. 13

14 The EEOC Makes it Even Harder EEOC Guidance: Application of the ADA to Contingent Workers Placed by Staffing Firms Both the staffing firm and its customer are responsible for providing accommodations. If the accommodation is in the customer s control, and the customer refuses to provide it, the staffing firm must take corrective action. This includes placing the worker in the next available position, and not placing new workers until the customer agrees to accommodate. 14

15 Navigating The Devil and the Deep Blue Sea (The EEOC) (Staffing Firms) (Staffing Firm Customers) 15

16 Navigating The Devil and the Deep Blue Sea The EEOC dilemma for staffing firms: Lose the business or face liability. What should a staffing firm do? Do what you can! If the issue cannot be resolved, re-assign the employee ASAP to cut off damages. Provide whatever reasonable accommodations you can on your end. Make an informed business decision. 16

17 Protecting Your Customers (and Yourself) What s best for your customers is also best for you. Have your employees report to you (or a team lead) and not your customers. Work out procedures with customers ahead of time. Put in place anti-harassment, anti-discrimination, and ADA policies that include procedures for reporting issues to you and not your customers! Take the lead in problem solving issues involving your employees and your customers. 17

18 Remember HR Best Practices With all of these co-employment issues, general HR best practices become even more important. Document employee performance as well as any decisions to counsel, warn, or terminate. Make sure Staffing Firm HR is in the loop. Document all employee complaints, and report them to Staffing Firm HR! Document all requests for ADA accommodations, and report them to Staffing Firm HR! (Notice a few themes here?) 18

19 Hire the Best! Carefully screen workers and applicants consistent with the law Carefully select only the best staffing firms around! 19

20 HRCI Credit Activity ID: Title: Managing Co-Employment Start Date: 5/13/2016 End Date: 5/13/2016 Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) This program, , has been approved for 1 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. Please be sure to note the program ID number on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at 20

21 SHRM Recertification Credit Activity ID: 16-YUF28 Title: Managing Co-Employment Start Date: 5/13/16 End Date: 5/13/16 Professional Development Credits: 1 TERRA Staffing Group is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP and SHRM-SCP 21

22 Reality Based Leadership-Ditching the Drama and Turning Excuses into Results Presented by: Cy Wakeman Cy Wakeman, Inc June 10 th, :00-11:00am This activity has been submitted for HRCI and SHRM credit. Register at: 22

23 Q&A Michael Droke Dorsey & Whitney LLP Labor & Employment Practice Group Office: (206)