Tag Archives: temporary employee

Who Is The Employer of a Temporary Employee?

Do you use temporary employees in your business?  If you answered that question “yes” then you need to know that your company may be considered a “joint employer” of those employees.

If your company exercises the right to control the temporary employees your company  and the company providing the temporary employees (“temp service”) are joint employers of the temporary employees.

Factors to consider in determining who has  the right to control include:

1.who controls when the employees arrive and leave;

2. who controls what the employees do and how they do it;

3. whose policies and procedures govern the employees;

4. who provides the tools and equipment; and

5.  who pays the employees and provides their benefits.

The most significant legal implication of being a joint employer is that temporary employees can pursue a claim against you and the “temp service” for any  discrimination, harassment or retaliation they claim to experience while performing an assignment for your company.  Furthermore, under the Affordable Care Act (ACA) if you have the right to control the temporary employees you use you will have to count them in determining whether you meet the ACA 50 employee threshold.

Temporary employees can provide a valuable service to your business.  But if you use them know that the legal ramifications of doing so may be far more permanent.

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Tennessee Supreme Court holds temporary employee must be treated the same as a permanent employee for workers’ compensation benefits

Recently the Tennessee Supreme Court held that an employee of a temporary agency who is injured on the job but not returned to work by the agency at a wage equal to or in excess of the pre-injury wage is entitled to benefits up to six times the medical impairment rating.  This is the same rate that a permanent employee could receive in the same circumstances.

In deciding Timmy Dale Britt v. Dyer’s Employment Agency the Supreme Court reversed the trial court which held that Mr. Britt was limited to one and one-half times the medical impairment rating, which is the rate that applies if the injured employee is returned to work at a wage equal to or in excess of the pre-injury wage.  The trial court based its holding on the fact that Mr. Britt was a temporary employee.  The Supreme Court held that the Tennessee workers’ compensation statutes do not distinguish between permanent and temporary employees.  Since Mr. Britt was never offered the opportunity to return to work the Court held the lower rate did not apply.

Governor Haslam has announced a plan to review and possibly overhaul Tennessee’s workers’ compensation system.  It will be interesting to see if this temporary employee issue will be addressed as part of that process.

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