ASA persuaded the California legislature
to amend the state wage and hour law to
clarify that the end of an assignment is
not in and of itself a discharge requiring
immediate pay.
But there is one fundamental question
about the nature of his staffing firm’s
relationship with its temporary workers,
and he can’t find the answer in
Co-Employment: Does the end of a temporary assignment mean that the temporary
worker’s employment with the staffing
firm has ended? And, just as important,
why does it matter? Mark wants to be
sure he starts his new staffing career off
on the right foot by steering clear of any
legal missteps.
confirming that the end of the assignments did not constitute a discharge. In
so doing, they noted the parties’ expectation that their relationships would be
ongoing—temporary workers were not
told they were discharged and, in fact,
they contacted their staffing firms for
additional assignments.
In short, there was no evidence to
indicate that the temporary workers or
staffing firms ended the parties’ relationship.
Form I- 9 issue: In the Form I- 9 context, the U.S. Department of Justice Executive Office for Immigration Review
issued an important decision that stands
for the proposition that the end of a temporary assignment is not necessarily a
termination of the employment relationship for Form I- 9 purposes.
Pursuant to I- 9 rules, if an employer
rehires an employee within three years
of termination, the employer must either
complete section three of the previously
completed Form I- 9 or complete a new
Form I- 9 altogether.
In U.S. v. Ketchikan Drywall Services,
the DOJ’s Office of Chief Admin-
istrative Hearing Officer examined
whether, for I- 9 purposes, seasonal and
temporary workers’ employment termi-
nated at the conclusion of their drywall
installation assignments, thus result-
ing in their rehire when they accepted
new assignments and requiring existing
Forms I- 9 to be updated or new forms
completed.
The Answer
Mark’s question is a good one, as it
implicates wage and hour and Form I- 9
issues, among others. The question also
is one with which the staffing industry
historically has struggled. Fortunately,
legislatures, courts, and administrative
bodies have provided guidance over the
last several years.
Wage and hour issue: From 2006
to 2008, plaintiffs’ lawyers sued staffing firms in California, contending that
the end of temporary workers’ assignments constituted a discharge and that,
as a result, state wage and hour laws
required staffing firms to pay their temporary workers immediately. Other states
have similar laws requiring immediate
payment of wages in the event of discharge.
ASA persuaded the California legislature to amend the state wage and hour
law to clarify that the end of an assignment is not in and of itself a discharge
requiring immediate pay. Two courts
subsequently issued written decisions
If an employer rehires an employee
within three years of termination, the
employer must either complete section
three of the previously completed Form I- 9
or complete a new Form I- 9 altogether.
