Co-Employment – An Over Used Scare Tactic or a Must See Reality Show?
With the launch of the employer mandates of the Affordable Care Act in January 2015, staffing agencies and their clients have one more reason to worry about co-employment. While the ACA clearly states that only the “common law” employer is responsible for “offering insurance,” and case law strongly supports the notion that the staffing agency is the “common law” employer, what happens if your staffing agency doesn’t offer ACA mandated benefits as required by law. Is there any way you might be liable for fines or penalties? Questions about co-employment get triggered any time two parties share rights and responsibilities inside the traditional employer relationship which is the case with all staffing arrangements involving a third party staffing company and their clients.
- Most staffing companies recruit and screen candidates, conduct background and reference checks, pay wages, calculate and pay wage related taxes and benefits, complete required reports, and retain at least some right to hire and fire an employee.
- Most of their employer clients take on the responsibility of supervising, directing, and controlling the employee’s daily activities.
- What reasons were given to IP about why IEMP didn’t interview Julie? Were those reasons valid? Staffing companies who do not ask their client to disclose reasons for considering or not considering each candidate submitted for a job and employers who do not provide those reasons, often leave themselves open to charges of (unfounded) discrimination.
- What screening requirements did IEMP give to IP? Were all of IEMP’s screening requirements job relevant? Screening requirements that aren’t clear or are so broad that everyone is lead to believe they are qualified, are asking for trouble. Establishing job relevant screening criteria is a joint responsibility of the staffing agency and their client.
- What does the contract between IM and IEMP say should happen? Typically these contracts indemnify the other from acts of negligence—so who’s at fault? Which party was negligent?
- Did IEMP require that IM screen Frank be a qualified forklift driver? Did they disclose that he would even be driving a forklift?
- What training or instruction did IEMP provide Frank before asking him to drive a forklift?
- How closely did IEMP supervise Frank’s work on the forklift?
- Did IM screen Frank for a job that required him to handle confidential information?
- Did IEMP properly protect the information they needed to be kept confidential?
- Did IEMP properly instruct and supervise Frank on how to handle confidential information?