HISTORY OF LEGISLATION IN THE UNITED STATES
LEGAL ISSUES FOR TEMPORARY WORKERS
Temporary workers experience alarming rates of discrimination and harassment. They are often seen by their employers and permanent coworkers as disposable and not treated with the respect they deserve. Companies may believe that temp workers do not have the same rights because they are not their own employees, but this is not necessarily the case.
Since temp employment is "at will," temp workers often have fears of retaliation for reporting issues: fears that are well supported by worker's experiences and research. Unfortunately this means that issues like sexual harassment may continue unchecked for years within certain workplaces.
Temp workers' feeling that they may have fewer rights in the workplace are sometimes proven true. For example, a temp worker may lose their jobs for giving birth or attending to family emergencies. The Family & Medical Leave Act (FMLA) has been interpreted by the courts, in some cases, to exclude the employees of temporary staffing agencies.
The good news for temp workers: there are no limitation of rights and should be no confusion in instances of discrimination and harassment. Temp agencies and/or host employers can, and have been, held responsible.
Take the temp work survey and contact us if you have experienced discrimination or harassment in the workplace:
Temporary Work, Permanent Abuse (2017). Research from the National Economic & Social Rights Initiative (NESRI).
Discrimination is any unfair treatment based on gender, race/ethnicity, age, religion, country of origin, language, physical appearance, or disability.
In some cases, there is widespread discriminatory hiring as part of a temporary staffing agency's normal practice, while in other cases, worksite employers intentionally use temporary staffing agencies to hide illegal, discriminatory hiring by requesting workers of a particular race or gender. At times, those requests are very direct:
In New Jersey, blacks were called “number 2s.”
In Illinois, “Code 3” meant a Latino worker.
A Texas temp agency called whites “blue eyes.”
An Ohio agency called them “vanilla cupcakes,” “hockey players” or someone “like you and me.”
Another agency owner in Alabama was accused of running her finger along her own white cheek to indicate a preference for whites.
In Texas, “bilingual” often meant a request for Latinos in jobs where speaking more than one language wasn’t necessary.
-Reveal News, (2016) When Companies Hire Temp Workers by Race, Black Applicants Lose Out
Since temp agency workers are not their employees, the discrimination will not be evident in a hiring company's own demographic data. The same can be true with temp agencies. Illinois is the only state in the U.S. to require that temp agencies track the demographic information of workers, beginning to hold agencies accountable. In all other states, temp agencies only report the demographic data of their internal employees, not the temporary workforce.
Despite the challenges, temporary workers are organizing and winning justice for themselves and their coworkers in cases of discrimination.
Sexual harassment can be in the form of unwanted sexual advances, obscene remarks, or other physical or verbal harassment of a sexual nature.
With regard to the law, temp workers’ primary employer is their temporary agency, not the company where they work for every day. So temporary employees often do not know who to speak to about their concerns. That is not to say, however, that onsite employers are off the hook for sexual harassment against their temporary employees.
In some cases where temporary employees were discriminated against or sexually harassed at their onsite company, the EEOC (the federal agency tasked with enforcing anti-discrimination laws) found that the onsite employer and temporary agency were both employers and held them jointly responsible for the illegal conduct. And, under existing precedent, staffing agencies can be held liable for harassment that occurs at a job placement—even if the harasser is not also one of the agency’s employees—if the agency “knew or should have known about the [harassment] and failed to undertake prompt corrective measures within its control.”
Temp workers have been objectified since the early days of the staffing industry, as seen in this advertisement for Kelly Girl, the staffing agency now know as Kelly Services. Sexual harassment continues to be too common, but temp workers are fighting back and increasingly winning protections and changes in their workplaces.
CHALLENGES OF ENFORCEMENT
The enforcement of labor laws and workplace protections is difficult even for secure, permanent employees. Regulatory agencies generally do not have the ability to be proactive, and instead must direct limited resources to the most urgent cases that are brought to their attention.
As the chart from UC Berkeley's Labor Center illustrates, the standard enforcement process can break down in situations with temporary workers for many reasons. This leads to more workplaces with unsafe and illegal practices and fewer employers being held accountable.
Temporary workers need to know their rights and feel empowered to exercise them, organizing with their coworkers and reporting issues to enforcement agencies when necessary. Only active efforts like these by temp workers can improve their own conditions.