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When using temps, make sure temp agency retains control of employment relationship

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in Employment Law,Human Resources

Using temporary workers can be an effective way to stretch your labor budget without making a long-term staffing commitment. But if a temp sues over alleged discrimination, you may not have saved much money.

To prevent surprises, make sure you treat the temp as a guest—leave the employment details to the agency that supplies the temp. That way, he can’t later claim he was really your employee.

Recent case: Jason worked for Kelly Services and was assigned to a UPS location where he handled billing and collection. Kelly Services managed all payroll matters, including vacation and sick leave. UPS didn’t even provide Jason with a key or swipe card as it did other employees. Instead, every day he reported for duty, he had to be buzzed in after ringing a bell.

When UPS discovered that it was paying Jason for hours not worked and that he might have been altering his time sheets, it told Kelly to find another temp.

Jason sued, alleging that he was a UPS employee and had been fired because of his sexual orientation.

UPS won the case after the court concluded Jason was Kelly’s em­­ployee, not UPS’. It looked at factors like workplace access to determine that Jason was a temp and not an employee who could sue UPS. (Scott v. UPS, No. 12-2886, 3rd Cir., 2013)

Final note: The biggest determining factor for whether a worker is an employee or a temp or independent contractor is control.

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