Author: Julie Bastian

Before joining Horton Law, I spent most of my legal career working as in-house counsel for a large privately-held global workforce solutions and business service company. I assist businesses with risk mitigation by analyzing their existing human resources policies and procedures and handling employment matters that come up. Nothing on the firm blog should be considered legal advice. If you need legal advice and think we can help, let me know!

Temporary Employees

Best Practices for Engaging Temporary Employees and Contract Workers

In today’s economy, businesses are always searching for an easy, yet inexpensive way to supplement their workforces as supply and demand fluctuate. One option is to use outsourced contractors–either individuals providing services as an independent contractors or temporary employees engaged through a third-party staffing agency. Many companies struggle with their legal responsibilities and risks in using contract workers. But those risks shouldn’t stand in the way of getting work done.

Co-Employment

A co-employment relationship exists where two or more companies have the right and obligation as an employer or joint employer to maintain responsibilities over the worksite, job duties, day-to-day job functions, and supervision of an individual. In a co-employment relationship both the employer of record (e.g., a staffing agency) and host employer (e.g., the staffing agency’s client) are legally responsible for complying with federal, state, and local employment laws. These include wage and hour requirements, leave entitlements, OSHA compliance, and discrimination and harassment claims.

Usually, hiring a contractor through a staffing agency to provide services as an independent contractor or temporary employee need not be any riskier than hiring an individual directly as a W-2 employee. However, if your company decides to utilize contractors, some preventative measures will better protect you and reduce the risk of future co-employment based claims.

Use a Reputable Staffing Agency

Whether you need a single person to complete one short-term project or have an ongoing need to supplement your workforce, you should adequately vet any staffing agency that you work with. The staffing agency should be financially stable, have extensive history providing services to clients in your industry that are similar in size and scope, and be able to provide reliable references. It should also have a reputation among employees and clients for always conducting business professionally.

The American Staffing Association maintains a searchable online directory of its staffing agency members.

Document the Relationship

While it is impossible to eliminate the risk of a claim arising as a result of a contractor being placed on assignment, you should have a well-drafted agreement that contains the parties’ expectations, legal responsibilities, and roles and responsibilities of each party. The contract should aim at reducing the overall risk of exposure to the company. This includes addressing indemnity obligations to apply if a claim arises.

At a minimum, the agreement should clearly define the staffing agency’s role as the employer of record and state the client company’s requirements for any contractor placed on assignment. This may include pre-employment background and drug screenings, reference checks, or credit checks. The agreement should also identify insurance coverage requirements and define the parties’ liability and indemnity obligations.

Proper Training

It is essential to educate company managers on the overall risks of co-employment. Company managers should understand that they will be responsible for the assignment of job duties and day-to-day supervision of the contractors, but the staffing agency, as the employer of record, is usually responsible for most other functions. This typically includes the recruiting, onboarding, employment, termination, payment of wages, reviews, and handling of disciplinary matters pertaining to temporary employees.

The staffing agency should review all documentation or formal communications between the company and temporary employees. It should clearly define the individual’s role as a company contractor to avoid confusion and reduce the risks of co-employment claims. This includes all company policies and procedures, training manuals, badges, company handbooks, and memos provided to the workers throughout their assignments.

It is also vital to educate company managers on the laws that pertain to joint-employer relationships. Managers need to understand that even though the contractor works directly for the staffing agency, the company still has a legal obligation to provide each contractor with a safe workplace free from discrimination and harassment. Since the company is benefiting from the services of the contractor, it is probably also jointly responsible for compliance with all applicable employment laws. Many managers will not recognize these legal responsibilities without focused training.

Disciplinary Matters Involving Temporary Employees

The procedure for handling the investigation and discipline of temporary employees can cause confusion. An improper approach can increase the risk of co-employment claims.

To the extent possible, the staffing agency (as employer of record) should handle the recruitment, onboarding, employment, and termination of contractors. Exceptions might be necessary in limited circumstances. Sometimes the host employer might have to terminate a temporary employee’s assignment immediately and even escort them out of the building. But if a situation like this arises, the staffing agency should be contacted immediately and advised of the termination. As employer of record, the agency should then contact the worker as soon as possible to follow up as appropriate.

Whenever a workplace investigation involves a temporary employee, the host employer should promptly involve the employer of record. The staffing agency should always have an agent present, either by phone or in person, for questioning of a temporary employee. A representative of the host employer will usually also be present during the interview. They might even conduct the interview. But an individual from the primary employer must be present to serve as a representation for the contractor, review the details, and be available to ask any necessary follow-up questions.  This is especially important if the investigation involves a workplace injury or a complaint that could result in an administrative claim or litigation. This approach also reduces the need for subsequent meetings between the parties to discuss what occurred and the appropriate corrective action.

Employee Benefits

Before engaging contractors, your company should review all benefit plans to confirm that they apply to direct employees only. Your plans and policies should expressly exclude workers engaged as temporary employees or independent contractors employed by a staffing agency or other third party. Address all benefits plans, including medical and dental insurance, 401(k), life insurance, workers compensation, and unemployment insurance.

If, alternatively, you intend to extend benefits to contract workers, carefully consider the legal ramifications. Doing so might convert the worker to direct employee status and interfere with the idea of engaging them as a contractor.

Keys to Remember

Here’s a final checklist to help you avoid co-employment claims from temporary employees and independent contractors:

  • Work with a reputable staffing agency that is familiar with your company’s industry.
  • Obtain a qualified candidate from the staffing agency.
  • Require and allow the staffing agency to manage the person properly during the assignment.
  • Proper management should include regular and consistent contact with the employee.
  • Provide co-employment training to your managers and human resources personnel involved in the day-to-day management of the temporary employees.
  • Don’t extend employee benefits to temporary employees or independent contractors.
  • Comply with all applicable employment laws regarding both direct employees and contractors.

 

Not sure whether someone working for you is an employee or independent contractor? Watch our recorded webinar for more on that issue.

Domestic Violence Victims

New York Employers Must Give Domestic Violence Victims Time Off

On August 20, 2019, Governor Andrew Cuomo approved enhanced protections for domestic violence victims at work.  The New York Human Rights Law amendments will create additional obligations for employers to accommodate employees who have been victims of domestic violence.  The amendments take effect on November 18, 2019.

Who is a “Victim of Domestic Violence”?

These amendments modify the definition of a “victim of domestic violence” under the New York Human Rights Law.

Employees will qualify as a domestic violence victim if they or their child has been a victim of a criminal act that resulted in actual physical or emotional injury or has created a substantial risk of physical or emotional harm to such employee or their child. The criminal acts must also have been committed by a family or household member.

Family or household members include people related by blood, married to each other, living together, and others.

The law does not apply to employees younger than 16 unless they are married or have a child.

Legal Protections for Domestic Violence Victims at Work

New York employers may not discriminate against an individual because of their status as a victim of domestic violence.  This includes refusing to employ someone because they are a domestic violence victim; terminating an individual’s employment or negatively changing their compensation or other work conditions based on that status; and advertising any limitation related to employment based on such status. Harassment of an employee who has been a victim of domestic violence is also prohibited.

Plus, the Human Rights Law adds a new affirmative requirement to provide reasonable accommodations to employees who have experienced domestic violence.

What Is the Employer’s Duty to Reasonably Accommodate?

Employers in New York will be required to reasonably accommodate victims of domestic violence who need a reasonable amount of time away from work for any of the following reasons that pertain to an incident or incidents of domestic violence:

  • Seeking medical attention for injuries;
  • Obtaining services from a domestic violence shelter, program or rape crisis center;
  • Getting psychological counseling, including for a child who is a victim of domestic violence;
  • Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, which may include temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of an offense, or appearing in court.

In these situations, employers must provide reasonable accommodations unless they would pose an undue hardship. The degree of hardship depends on several factors. These include the overall size of the employer’s business, the nature of the business, and the structure of its workforce.

Employee Obligations for Receiving Accommodation

An employee seeking time off as an accommodation will need to provide the employer with reasonable advance notice whenever possible.

Employers may require a certification in cases where the employee does not provide advance notice. Acceptable documentation includes:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or counselor that the employee or his or her child was undergoing counseling or treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence.

If an employer has a policy that includes paid time off, such as vacation, it may require the employee to use earned paid time off for a protected absence. However, if the employee has no available paid time off, the employer does not have to pay the employee.

An employee who must be absent from work as a domestic violence victim accommodation has the right during the absence to continue any health insurance coverage provided by the employer.

Confidentiality

Under these amendments, employers must keep information about an employee’s status as a victim of domestic violence confidential.

The law does not expand on this obligation. Presumably, employers must be able to discuss the situation to the extent necessary to provide necessary accommodations. However, disclosure of the reason for an employee’s absence to co-workers could violate this new requirement.

What Should Employers Do Now?

You must ensure that managers recognize these new responsibilities. This especially includes both the requirement to maintain confidentiality and the obligation to allow time off from work to domestic violence victims. And be sure to take such requests seriously. Although employers might be able to deny time off in some cases, the law is intended to protect employees even if it inconveniences business operations.

 

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Religious Attire

New York Extends Worker Protections for Religious Attire

On August 9, 2019, Governor Cuomo approved a change to the New York State Human Rights Law enhancing worker religious discrimination protections. The law will now specifically address applicant and employee accommodations based on religious attire and facial hair.  The amendment will take effect on October 8, 2019.

Religious Attire Protections

The amendment expands or at least clarifies the existing protections from religious discrimination under New York law.

The law already prohibits employers from requiring an applicant or employee to “violate or forego a sincerely held practice of his or her religion.” Before, this specifically included “the observance of any particular day or days or any portion thereof as a sabbath or other holy day.” Now the law adds a specific reference to “the wearing of any attire, clothing, or facial hair in accordance with the requirements of [the person’s] religion.”

“Undue Hardship” Exception

Employers will not always have to allow employees to wear religious attire or facial hair in every situation. There is an exception if, after engaging in a bona fide effort, the employer can “demonstrate that it is unable to reasonably accommodate the employee’s or prospective employees sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

Employers Must “Reasonably Accommodate” Religious Beliefs

New York State and federal law both require employers to make a reasonable religious accommodation for an employee’s sincerely held religious beliefs, unless doing so creates an “undue hardship” on the employer. Protected religious beliefs may include those of a traditional, organized religion. But also include beliefs not part of a formal religion or sect, even if practiced by relatively few people.

Employers should consider various factors in assessing whether a religious accommodation request imposes an undue burden or hardship. Here are some factors highlighted by the New York Attorney General:

  • the type of workplace;
  • the nature of the duties required for the position;
  • any cost associated with the implementation of the request relative to the size and budget of the employer;
  • the effect that the religious accommodation may have on the business;
  • any collective bargaining rights or seniority rights that may exist;
  • the number of individuals that may require the accommodation;
  • any impact on workplace safety and productivity;
  • whether the requested accommodation would conflict with another law that pertains to the circumstances; and
  • whether any alternative accommodations would also meet the needs of the religious needs of the applicant or employee.

It is often difficult for an employer to truly understand what religious beliefs would be considered “protected” under state and federal law and therefore must be accommodated. If you have an applicant or an employee that has requested a reasonable accommodation based on a protected religious belief, it is strongly recommended that you seek guidance from an employment attorney before making a decision that could potentially subject the company to liability.

Review and Prepare

New York employers should review existing dress code and grooming policies in light of the revised law. You should ensure that all personnel responsible for receiving and responding to applicant and employee accommodation requests in New York familiarize themselves with the new religious attire provision. They must also understand their obligations regarding religious accommodation requests generally.

 

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