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Implications of ongoing temporary worker status

By Ruth Kraft posted 03-26-2014 10:50 AM

  

BLOG POST---USE OF TEMPORARY WORKERS TO AVOID THE STING OF THE AFFORDABLE CARE ACT

 

I am frequently asked by employers at the margin, with around 50 workers, how to avoid the penalties which will be imposed in 2016 when the employer mandate kicks in.  My usual answer is to inquire whether the employer can obtain the same productivity with fewer workers.  I say this knowing that layoffs of decent people are likely to ensue but, if economies cannot be achieved in other sectors of the business, this is frequently the simplest solution.  It is no wonder, given the strictures of the ACA, that the purported recovery from the recession has not been accompanied by significant growth in employment opportunities. 

I expect that companies will seek to employ many more temporary workers once the employer mandate becomes operative.  To recap very briefly, the mandate will require employers of 50 or more workers to provide affordable coverage to those who work at least 30 hours per week.

Do your clients have employee handbooks?   All my manuals contain definitions of full-time, part-time, per diem and temporary employees.  Classically, temporary workers are not eligible for any benefits of employment.  So, what does temporary really mean?  It is apparent to me that some employers will use this title for workers who remain with the company for more than 60 days.  That would be an enormous and costly mistake.  In this audit environment, not only will they face litigation under the Fair Labor Standards Act and state labor laws, but the wrath of the ACA may descend upon you as well.

Indeed, OSHA has anticipated this development based on the concern that temporary workers will not be adequately trained in workplace safety and are more likely to be injured during their first days on the job. 

I anticipate that the federal government’s current focus on occupational health and safety matters related to temporary employees will be expanded in 2015-2016 to scrutinize misclassifications of workers as temporary.

If your clients’ businesses   rely on temporary workers who are not employees of third party companies, their policies and practices must align with a multitude of statutes on the federal, state and local levels.

For recommendations on your clients can protect their interests under these circumstances, Judge Ruth Kraft, Chair of the Employment Law Group at Kirschenbaum & Kirschenbaum, may be reached at (516) 747-6700 ext. 326 or RKraft@Kirschenbaumesq.com.

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