A large number of employers, large and small, now hire temporary workers for various job roles. For businesses in California and elsewhere in the United States, temporary workers translate into significant cost savings.
First, employers save on training costs by hiring skilled labour through third-party labour contractors or staffing agencies.
Second, they need not provide similar benefits for temporary and regular employees; temporary workers are entitled to fewer benefits.
Third, if a business is under-resourced and needs workers at the job-site immediately or cannot afford to hire regular workers, hiring temporary workers turns out to be an easy way out.
For employers, it is but natural to think of ways to trim labour costs. They are, after all, in it for generating profits. So, they will at one point or the other, hire temporary workers for different reasons.
However, many employers game the legal framework and violate the law; they exploit temporary workers to maximize their cost savings.
Here in this post, we will discuss several things that a temporary worker in California should know.
Let’s start with the basics.
Who is a Temporary Worker in California?
A temporary worker is someone who works for an employer temporarily. Such workers are either hired directly by businesses or through staffing agencies.
In California, all temporary workers must be provided with certain benefits such as workers’ compensation and unemployment. Most temporary workers prefer working with staffing agencies; this way, they are temporary workers at job locations but may remain employees of staffing agencies.
Are the Rights of Temporary Workers in California Protected by Law?
Regardless of your current employment status, you should know that all workers in California are protected by labour laws.
Therefore, as a temporary worker, you are entitled to:
- A safe and healthy work environment.
- Workers’ compensation benefits.
- Unemployment benefits.
- Minimum wage.
- Overtime wage.
- Sufficient rest.
- Meal breaks.
In Brinker Restaurant Corp. v. Superior Court (2012) case, the court ruled on the ‘employer meal and rest break obligations’. This judgment by the California Supreme Court effectively concluded that employers must relieve all its workers of all duties during meal times; workers are at liberty to utilize the time in any manner they see fit. It is, however, not the employer’s responsibility that workers stop working during pre-designated meal periods.
Employers should have compliant rest and meal break policies though. It is the responsibility of an employer (and not the staffing agency) to notify these policies to temporary workers.
If you are deprived of these basic ‘employee-rights’ at any point in time, you are well within your right to pursue legal action against the staffing agency or host employer without being retaliated against.
What Is the Law Governing Temporary Workers in California?
A vast majority of temporary workers are first hired by labour contractors or staffing agencies. These workers are then outsourced to client companies or host employers.
As and when there is a violation of a worker’s rights, who is responsible? Is it the labour contractor or the client company?
Most of the legal issues concerning temporary workers have to do with this arrangement between a labor contractor and a client company.
Are temporary workers ‘employees’ of ‘independent labour contractors’ who work with staffing agencies or client companies?
On Sept 28, 2014, Governor Brown signed a historic law (California’s AB1897) that added a new section to the California Labor Code.
The newly appended section 2810.3 stated three main requirements:
1. When a labour contractor provides temporary workers to a host employer, the latter must share all civil liability and legal responsibility with the former for the payment of wages as well as any failure to provide workers’ compensation coverage (required by Section 3700).
2. A client company or employer cannot pass off any legal responsibilities or liabilities under the California/OSHA provisions to a labor contractor concerning the workers provided by the labour contractor.
3. As and when a state enforcement agency demands relevant information to ensure compliance with applicable state laws, an employer or a labour contractor is bound to provide it to the concerned agency or department.
There are numerous exceptions to this law, regarding the type of employer, number of employees, the nature of the industry, etc. Therefore, it is advisable to consult an experienced employment law attorney before arriving at any conclusions.
What If a Temporary Worker in California Gets Injured on the Job?
A temporary worker in California may qualify for workers’ compensation if he or she gets injured on the job. In most cases, it does not matter who or what caused the injury. Your ‘temporary’ employer is likely to be legally bound to pay for medical expenses arising out of workplace injuries or illnesses related to work.
Both primary (staffing agencies or labour contractors) and secondary (client companies) employers in California are required by law to take necessary steps to safeguard temporary employees from workplace accidents.
Since they need to comply with California’s Department of Occupational Safety and Health (OSHA) regulations, both primary and secondary employers should follow a functional Injury and Illness Prevention Plan (IIPP).
Generally, either of the two employers – primary or secondary – assumes the responsibility of covering temporary employees under workers’ compensation insurance. Who finally assumes the responsibility depends on the type of contract signed between the two.
In most cases, it is the primary employer or the staffing agency that besides handling hiring, termination, payroll management, etc., provides workers’ compensation.
Can a ‘Temporary Worker’ in California Become a ‘Regular Worker’?
There are no straight answers to this question. As such, there is ‘no’ fixed time limit on how soon a ‘temporary’ worker’ employed in California may become a ‘regular worker.’
However, your employer can be held liable if:
1. You have been employed as a temporary worker for a long time (say, several years).
2. You complete the same set of tasks or fulfill similar duties as regular workers.
3.. The employer denied you the benefits that were made available to regular workers.
To understand it better, we need to study a famous class-action lawsuit filed by temporary workers against Microsoft Corp. in which the workers claimed the company illegally denied them standard benefits. After a legal battle that lasted eight long years, the company finally settled the class-action lawsuit by paying $97 million.
When the judgment came in Dec 2000, the company had approximately 40,000 employees; of these, nearly 5000 were temporary or contingency workers.
Here’s what happened
- During its early growth stages in the late ’80s and early ’90s, Microsoft Corp. hired a large number of temporary workers.
- The company started a badge system to distinguish temporary workers from regular workers.
- Temporary workers were kept on for many years.
- Later on, when these temporary workers tried to participate in the employee discount stock purchase program, the company refused them the benefit, stating such a benefit cannot be extended to ‘temporary’ employees
- In 1992, a class-action lawsuit was filed against Microsoft and the rest is history.
Is a Temporary Worker in California Protected Against Discrimination?
Yes. Temporary workers can sue both client companies and staffing firms for workplace discrimination as per the rules and regulations of the Equal Employment Opportunities Commission (EEOC).
Therefore, both staffing firms and client companies can be held liable if you are discriminated against based on race, religion, colour, gender, age, disability or country of origin.
How Should a Temporary Worker in California Report an Issue?
- First things first, you should report the problem to both the staffing agency and the client company.
- If your supervisor at the client company says that you cannot have access to the HR department since you are a temporary worker, let him/her know you are doing it for their information.
- If you have reason to believe that you’ve been discriminated against, submit your complaint in writing to the appropriate official at the client company; make sure to write it with an appropriate title such as ‘Complaint Against Age Discrimination’ or ‘Complaint Against Racial Discrimination.’
- If the problem is not addressed, you can file a complaint with a relevant state agency or speak with an experienced attorney.
- What if your supervisor sexually harasses you? Contact EEOC or speak with an employment law attorney, if you are a victim of sexual harassment in the workplace.
- Write to the California Department of Labor if you the client company refuses to pay the wages.
More temporary workers, even when they are at the receiving end of violations of client companies or staffing firms, are often satisfied that they’ve at least come home with a paycheck. They do not even think of pushing back or seeking assistance from an employment law attorney in California. That’s a mistake.
If you are a temporary worker in California and have reason to believe that your rights have been violated, do not sit quietly. It will only encourage an employer to exploit more workers like you.
Talk to an employment law attorney and explore the legal options available.
Disclaimer: This is not legal information. No attorney-client privileges are substantiated from this article.