I searched in Apple Music for songs titled “Higher,” and it’s a pretty common song title. There are songs called “Higher” by Creed, Tems, Citizen Cope, TEC, burns Boy, Rihanna, DJ Khaled, Lemaitre, Chris Stapleton Michael Buble, Eminem and more. I stopped the list because you get the idea. If you want “Higher,” just search for songs, and you’ll have many to choose from.
But if instead you want “Hire,” and you’re in Minnesota, your options are much fewer. Or, actually, your options are much fewer if you want “No Hire.” Let me explain.
A Minnesota law enacted last summer bans service providers, including staffing agencies, from doing anything to “restrict, restrain, or prohibit” the hiring of its employees or independent contractors. That means a clause prohibiting direct hire is no longer allowed. The law also bans clauses that would prevent soliciting such workers for direct hire.
The law took effect July 1, 2024, and it applies to earlier contracts too, rendering these clauses void.
There are a few limited exceptions, such as for vendors providing professional business consulting for computer software development. But that’s a pretty narrow lane to try to drive your truck through. Reminds me of some tunnels I drove through in Northern Italy last fall. Not much room to maneuver. Especially when there’s a bus in the tunnel. They shouldn’t let buses in those tunnels.
A possible workaround is to impose direct hire fees, but those fees may be seen as “restrict[ing]” or “restrain[ing]” hiring. It’s unclear whether Minnesota courts will view direct hire fees as an unlawful restriction or restraint under this new law.
If your business provides or uses staffing services in Minnesota, check your contract. Same thing for contracts with other vendors who supply labor, such as consultants. If the contract prohibits direct hire of the vendor or staffing agency’s employees, that clause is probably now void.
And there are no good songs about laws that void contract clauses. I checked.
I saw this tourist bus in New Zealand. So they finally figured it out. This company combines time travel and leisure, which I assume means that these tourists enjoyed a two-week vacation then returned home on the day they left.
Or maybe they were visiting from the future, which if true, I would have a lot of questions for them.
On a recent business transaction I worked, time travel might have helped the seller. Allow me to explain. The thing to remember is that words matter, just like there is a sharp difference between leisure time travel and leisure time travel. I choose to believe this touring company specialized in the latter.
The seller’s business was to offer technical specialists to its clients as consultants. The specialists had skills and expertise that the clients lacked. The consultants would advise the seller’s client. So far, so good. That’s a good business model.
But what we found as we read the contracts caused some concern. In all arrangements with clients, the seller’s function was the same — to identify and loan out technical specialists, while treating them as seller’s employees. Seller was operating as a quasi-staffing agency.
Even though the arrangements were the same each time, there was some sloppiness in how the “Services” were defined. In what I would call the Staffing Contracts, the seller’s agreements with its clients properly described the Services as identifying technical experts, loaning them out, and treating them as seller’s employees for employment and tax purposes.
But some of the agreements were what I would call Consulting Contracts. In the Consulting Contracts, the seller’s Services were described as providing the technical expertise desired by the client.
What’s the difference? Well it’s as big as the different between leisure time travel and leisure time travel. Suppose the individual consultant gives bad advice and makes a mistake that causes the client to lose money. The client then looks to the seller for indemnity and relief.
In a Services Contract, the client is entitled to no relief for a consultant’s bad advice. The seller did what it contracted to do. It provided the talent. But in a Consulting Contract, the seller contracted to provide consulting services. If the consulting services were provided in a negligent manner or resulted in a loss by the client, the seller might be liable for those damages.
The lesson here is to be careful when defining Services. If you are loaning out talent, be sure to define the Services narrowly.
Poor drafting may result in confusion and unexpected liability. If you find yourself in this situation, try to amend the contract, and see if you can make the amendment retroactive, time-travel style.
From mid-January to mid-February, I spent four weeks working remote from New Zealand’s South Island. It’s an astoundingly beautiful place, and I loved the experience. One experience I apparently missed out on, however, was seeing the now-famous blobfish.
The gelatinous blobfish lives at depths of 2,000-4,000 feet, a visit to which was not on my itinerary. But if it had been, I might have seen the 2025 Fish of the Year, as named by New Zealand’s Mountain to Sea Conservation Trust.
Its odd appearance is apparently caused by bringing the fish to the surface. In its deep sea habitat, the pressure causes it to look rather like a normal fish. So if you were deep in the sea, you might not have treated the blobfish any differently than its neighbors.
A recent federal court decision serves as a good reminder about the dangers of treating someone differently — in a way you might not have expected.
A recruiting firm was working with a candidate who had been threatening to sue her former employer for discrimination. The recruiting firm advised her against it and, when she sued anyway, it dropped her as a client.
But recruiting, staffing, and other firms can work with whomever they want, right? Generally yes, but they cannot decline to engage someone for an unlawful reason.
Title VII of the 1964 Civil Rights Act allows employees to assert their legal rights opposing discrimination and protects them against retaliation. The protection against retaliation extends beyond the company being sued. Another potential employer — or recruiting firm, or staffing firm, or even a company considering engaging the person as an independent contractor — cannot retaliate against that person for having asserted protected legal rights.
The lesson for recruiting, staffing, and other firms is this: Do not turn someone away for the sole reason that the person sued a former employer. That may be in violation of federal law.
In the federal case described above, the court denied a motion to dismiss by the recruiting firm, holding that the firm could potentially be liable for retaliation if the reason it declined to work with the individual was because she had asserted her federal protected rights under Title VII.
Like the blobfish, this seems like an ugly outcome for businesses. But also like the blobfish, if you go a little deeper, everything appears somewhat normal. If an individual was truly discriminated against, that person should not be punished for being a victim. That’s the theory anyway. We all know there are lots of meritless discrimination lawsuits. The anti-retaliation protections of Title VII extend to claims brought in good faith, even if the plaintiff doesn’t win.
Everyone has New Year’s Resolutions. Except me. My wife asks me every year, and every year I politely decline. She doesn’t like when I do that.
Some people pledge to lose weight, to get skinnier. This post is about getting skinny with your handbook for 2025—just for temps.
Do you provide your employee handbook to staffing agency temps? Should you?
Generally, I would say no, you should not. The handbook is filled with information about benefits that apply only to your direct employees, not temps. The handbook also probably directs and controls what your workers do, in ways that could make you a joint employer.
Instead, consider rolling out a skinny handbook just for temps.
There are a few polices that should apply to staffing agency temps, and it’s to your benefit to make clear—in writing— that these policies apply. It can be about 6-8 pages. That’s all you need.
Outline for Handbook for Temps
1) Equal Employment Opportunity
Anti-Discrimination
Anti-Harassment
Complaint Procedure
No Retaliation
2) Site Safety
Drug and alcohol
Weapons
Workplace Threats and Violence
Accidents, Emergencies, Reporting of Injuries
Searches, Screening
That’s it. You can include a welcome message too if you’d like. Maybe add a call-off procedure. Check whether references to “employees” should be changed to “workers” or something similar that doesn’t sound like you are conceding joint employer status.
Creating a skinny handbook for temps should take no more than 2-3 hours. If you want to start the year with a quick accomplishment that will add value, this is a good one. And you can even claim it as your New Year’s Resolution.
A Florida car thief may want to reconsider his career choice.
A Miami Beach man walked back to his Corvette after a Starbucks run, only to find a wannabe thief trapped inside. The thief became trapped inside because the car has electrical locks and no manual door handle. The car requires a key to unlock the doors.
The thief begged the car’s owner for help, but without success. The car’s owner videotaped the ridiculousness and called the police. That’s bad news for the thief.
Business owners in Illinois had much better news recently, when Gov. Pritzker signed amendments to the state’s temporary worker law. The law was last amended in 2023, when it created new burdens for businesses using staffing agency temp labor. (See here and here.)
The main problem business owners had with the 2023 amendment was that staffing agencies were required to pay temps “not less than the rate of pay and equivalent benefits” of comparable employees at the business where they were providing services. The only way staffing agencies could ensure compliance with this requirement was to obtain wage and benefit data from its client. Obviously, businesses did not want to provide that information. (A court decision struck down the “equivalent benefits” requirement.)
Under the 2024 amendment, a staffing agency can now comply with the pay requirements in two ways.
First, it can match the straight-time hourly rate of a comparator employee who works directly for the client, as before.
Second, they can now determine compensation without the need for comparator data from the client business. Under the amendment, the staffing agency can instead comply with the pay requirements by paying its workers based on Bureau of Labor Statistics data.
The pay requirements do not apply until a temp worker has worked 720 hours at the client business within a 12-month period.
The change to the law means that businesses retaining staffing agencies in Illinois will no longer be required to provide wage and benefits information about its comparator employees. The client, not the staffing agency, gets to choose whether to provide the data and, if the client chooses not to provide it (which I expect will most often be the case), the agency must use the BLS formula.
There are other changes to the law too, including amended benefit requirements, notice requirements, and the right of temp workers to decline to cross a picket line.
Staffing work might not pay great, but laws like the Illinois temp worker law seek to ensure a minimum level of pay for temp workers. The Miami Beach car thief may want to look into steady work like that instead, if he ever gets out of the Corvette.
Teacher, don’t you fill me up with your rules (fn1)
Brownsville Station was a rock band formed in Ann Arbor in 1969. (Go Blue!) Their biggest hit, Smokin’ in the Boys Room, reached #3 on the Billboard charts and was later covered by Motley Crue. The song was Motley Crue’s first Top 40 hit. Apparently LeeAnn Rimes covered the song too in an album called Nashville Outlaws: A Tribute to Motley Crue, which is I guess was her tribute to a tribute to Brownsville Station.
Business groups in New Jersey and Illinois have also been pleading don’t you fill me up with your rules – in particular, rules related to the use of temp workers.
As discussed here and here, these two states passed temporarily worker laws that required temps to be paid wages and benefits equivalent to the regular workers they are supplementing.
Those rules are both in effect, but there are still several moving parts you should know about.
In Illinois, a judge struck down the portion of the law that required payment of equivalent benefits, ruling that this portion of the law was preempted by ERISA. Illinois lawmakers are now considering options to amend the law to require the payment of the value of benefits, if not the benefits themselves.
In New Jersey, the law took effect, but there’s an active lawsuit in which staffing and other business groups have challenged the law. The case is pending. New Jersey Staffing Alliance et al. v. Fais et al., No. 1:23-cv-02494, D. N.J.
For now, these two temporary work laws remain in effect, except for the benefits aspect of the Illinois law. But the situation remains fluid. It also would not be surprising if other states enacted similar laws. Companies using temp labor should continue to monitor these developments.
fn1 – Everybody knows that smokin’ ain’t allowed in school.
Five fisherman from Sri Lanka died last month after drinking the unknown liquid they found in bottles floating about 300 miles offshore. The fisherman reportedly believed the bottles contained foreign liquor.
Ceylon Todayreports that efforts are underway to inform nearby fishing trawlers about the dangers of drinking from floating bottles. It’s a good thing the authorities are doing that because, otherwise, the most common sense thing to do when finding unidentified liquids is to drink them.
Better planning would have saved their lives. You can also plan better when negotiating your staffing agency agreements. Here’s a clause you can include that won’t save lives but will save money.
Overtime Multiplier Caps
When a non-exempt temp works more than 40 hours in a week, the worker must receive overtime pay of 1.5x. But that doesn’t mean you need to pay the same markup rate to the agency for that extra .5x premium.
Here’s what you can do instead.
Suppose you pay a 40% markup on the hourly rate the agency pays to its workers. For a worker receiving $10/hour, you pay the agency $14, The agency gets $4 in revenue for one hour of work provided.
But suppose the same worker works 50 hours in a week. The extra ten hours are paid to the worker at $15/hour, which means the agency gets $6 in revenue for those hours. Here’s the math: 15 x 1.4 = $21, less the $15 that goes back to the worker = $6.
Why should the agency get $6 instead of $4 for the same hour worked? It’s a windfall. You can cap that with an Overtime Multiplier Clause.
The clause would say, essentially, that for straight time, the agency gets a 40% premium. For overtime hours, the markup is the same 40% on the straight time (the 1.0x), then the overtime premium (the extra 0.5x) is reimbursed with no markup on the premiums portion of the pay (the 0.5x).
The worker gets $15, but you pay the agency $19 for that hour, not $21.
In future posts, I’ll address other money-saving clauses you can add to your staffing agency agreements.
In the meantime, remember not to drink from any bottles you may find floating at sea.
When Sly and the Family Stone released “I Want to Take You Higher” in 1969, it was originally a B-side. The song took off, though, and became a Top 40 hit anyway.
The song is an upbeat ode to how music can make you feel good. Fun fact: It was used as the theme song in the Canadian children’s show, Hilarious House of Frightenstein, to introduce the show’s disc jockey, the Wolfman, who is either a fictional part-wolf part-man or a human DJ who achieved vocational excellence (and got his own TV show!) despite an untreated case of hypertrichosis.
The Family Stone wasn’t the only band that would like to take you higher. Jackie Wilson went to Billboard #1 in 1967 with “(Your Love Keeps Lifting Me) Higher and Higher.” In 1990, Damn Yankees asked, “Can you take me high enough?” in their song, “High Enough.” And, not to be outdone, Duran Duran, in 1995, released two covers of the Family Stone song, calling the second, “I Want to Take You Higher Again.”
Why all this talk about higher? Because when you’re working with a third party labor provider that provides high-demand, skilled labor, sometimes you’ll want to take their hire. (Heh heh).
The right to direct hire is often addressed in the vendor agreement. Maybe you’ll pay a finder’s fee if you direct hire within the first 3-6 months. But I was asked a more intriguing question last week that I thought was worth a blog post. (Thanks, P! You know who you are.)
Here’s the scenario, which is most likely to arise in the competition for highly skilled workers, like computer programmers: We want to direct hire, but we don’t control the market. If the third party labor provider pays a premium for in-demand roles, they might pay more per hour than we pay. That would make it hard for us to direct hire to worker.
Which leads to this question: How do we cap the wage paid by the third party labor provider (so we can offer the direct hire a raise, not a pay cut), without dictating the wages paid by the third party, which would create joint employment risks?
Excellent question! The answer is to do it indirectly. Here’s how.
Suppose you want the option to direct hire a chimneysweep but wouldn’t dare pay more than $50/hour for a chimneysweep (other than Dick Van Dyke himself, but only in his prime). Chimneysweeps are in high demand and so third party labor providers may be paying their chimneysweeps $50/hour too so they can get the best ones. It’s a competitive labor market, you know.
You don’t want to tell the third party labor provider what to pay its chimneysweeps. Dictating the wages of a third party worker is a strong indicator of joint employment.
Instead, you should agree to pay the agency $50/hour for its chimneysweeps. Then you know they are paying the chimneysweeps less than $50/hour because the agency has to be making a profit. The markup is probably 35-45%, so you could even pay the agency up to about $65 per hour and be confident the chimneysweep is not taking home more than $50/hour.
Then, if you wanted to direct hire the chimneysweep for which you are paying the agency $60-65/hour, that sweeper is likely only being paid about $42-45/hour and so his sweeping prowess could be yours for the low low price of roughly $50/hour or less. That’s how I would approach this problem.
I don’t think any bands are singing about this issue directly, but if I told you they were really singing “I Want to Take Your Hire,” you just might hear it that way next time you listen.
After a stolen SUV crashed in Wisconsin and its four occupants fled, one made the unfortunate decision to hide in a golf course port-a-potty. A golfer watched the events unfold and decided to take action, flipping the port-a-potty on its side, door facing down, to trap the car thief inside. (Oh, crap!) Police then arrived on the scene and arrested the now-stink-covered occupant.
Today’s tip is to help you avoid a stinky situation when requiring vendors to background check their workers.
When working with staffing agencies or other vendors supplying labor, you’ll often want to require background checks. But you have a few competing interests, so it matters how you impose this requirement.
First, you probably don’t want to do the background check yourself. For joint employment reasons, you don’t want to play a role in hiring and selection and, for practical reasons, you don’t want to adjudicate background check results on all of the vendor’s candidates. Require them to do the initial screening.
Second, it would be easy to provide the vendor with a list of automatic exclusions, but you don’t want to go there either. Background checks laws generally require an individualized analysis to be done. Avoid creating a “no hire” matrix.
So how can you make sure the vendor conducts an appropriate review of the results and doesn’t send you a worker with a concerning criminal history?
Here’s the strategy I prefer:
1. Require the vendor/staffing agency to perform the background check.
2. Require that they adjudicate the results.
3. But, also require that if they want to place anyone with a prior conviction for theft or violence, they must first notify you and provide a copy of the report and any additional information provided by the candidate.
4. Require that the vendor/staffing agency follow all background check laws.
5. Require that the vendor/staffing agency obtain consent from each candidate to share the results of any background check with your company. They should incorporate that concept into their consent document.
Here’s why I like this process:
First, as a practical matter, a vendor with this arrangement is very unlikely to send you anyone with convictions for theft or violence. They’ll prescreen those out because they know that’s a concern for you.
Second, if the vendor wants to advance someone with one of these convictions, it means one of two things: (a) there may be mitigating factors with this candidate that would support allowing the person to work, or (b) the vendor is being lazy, sending everyone through without running the first level adjudication you’ve required.
If (a), that’s good information. Conduct a second level adjudication. Consider mitigating factors. See how the candidate responds to a pre-adverse action notice. Avoid automatic exclusions and consider whatever facts the candidate provides.
If (b), you need to have a talk with the vendor because they’re not performing the first level adjudication that you’ve required. If you didn’t have this kind of notice process, you might never have known the vendor was being lazy in the adjudication process.
There are several decision points in drafting this kind of clause, but the points listed above are the main items to cover. Variations in drafting may focus on the timing of the convictions, the types of convictions to identify, whether to include drug testing or motor vehicle records checks, and which party performs various tasks related to pre- and post-adverse action notifications.
You’ll also want your contract to make clear that any decision you make that a candidate cannot be placed at your company is not a decision about their overall employment status with the agency. The agency can do what it wants with the person’s employment. All you’re saying is that the agency can’t assign that person to work for you.
By including a process like this in your agreements with staffing agencies and other vendors that supply laborers, you can stay on the right side of the background check law, manage joint employment risks, and still have the opportunity to block candidates who have a criminal history that creates unacceptable risk.
It’s too bad that future background check results for the car thief who got stuck in the port-a-potty won’t include that level of detail. Not that it would make a difference in screening out someone who steals cars, but it would be a fun detail to know. Yuck!
TikTok star Matthew Lani earned a substantial following as a 27-year old medical prodigy, having graduated high school at age 16 before becoming a doctor. He posted videos of himself walking through a South African hospital, dishing out medical advice to his followers or selling them medication.
Lani, however, turns out not to be a doctor at all. When the ruse was uncovered and authorities went to arrest him, he said he had to pee and then tried to escape through a bathroom window. TikTok later banned his account.
The NLRB’s new joint employer rule has many employers trying to figure out whether they need a doctor or whether they can avoid the rule’s reach by escaping through a bathroom window.
Today we’ll answer questions about how the new joint employer rule affects non-union businesses.
We have no unions. Does the rule apply to me?
Yes, 100% yes. In fact, companies without unions may be most at risk here. If your business has vendors, suppliers, business partners, or even customers with employees, pay attention.
The point of the rule is that if your business exerts any control over any of the listed seven terms or conditions of employment, you’re a joint employer. In fact, the rule makes you a joint employer even if you merely have the right to exert control over one of these seven terms, even if you never do.
The listed terms and conditions are broader than the usual suspects, and they include control over health and safety matters.
If the other company’s workers are ever in your building while doing their jobs, you might be exercising control over their terms and conditions of employment without realizing it. Read more here.
What if the vendor’s employees don’t have a union?
Still yes. The rule may still directly affect your business’s rights and legal obligations.
What happens if I have no unions but am deemed a joint employer of someone else’s employees?
If you are a joint employer under the new rule, here’s what that means:
(1) If the other company’s employees form a union, your business would be required to participate in the collective bargaining process.
You’d be required to bargain regarding any term or condition that you have the authority to control. That could include your site-wide health and safety rules.
(2) If the other company’s employees have complaints about terms or conditions that your business can control, you cannot retaliate against them for raising these concerns.
Under federal labor law, all employees — including those not in unions — have the right to engage in protected concerted activity without being retaliated against.
Protected concerted activity can mean just about anything that involves more than one employee, including actions by one employee that are intended to seek support from other employees. Like an Instagram post or a Glassdoor review. Ending their assignment or asking the vendor to remove them from the project could be considered unlawful retaliation.
But these are not my employees? Why would I have to do these things?
Because joint employment.
The concept of joint employment is that more than one person can be the employer. If your business is deemed a joint employer of another company’s employees, then under the National Labor Relations Act (NLRA), you’re also their employer.
What about wage and hour law, unemployment compensation, and workers comp? Would I be a joint employer under those laws too?
No. The new NLRB joint employer rule applies only to the NLRA. Other laws have other tests for determining who is a joint employer.
You can be a joint employer under the NLRA and not a joint employer under other laws. But a finding of joint employment under one law could make it more likely that your business is deemed a joint employer under other laws — particularly if you comply with the new NLRB rule by, let’s say, participating in collective bargaining.
Do I need a real doctor, or will a TikTok doctor be good enough?
All businesses should pay attention to the new NLRB joint employer rule, even if you don’t have unions.
Proactively evaluate your risk of joint employment under the new rule. The whole point of the law is that you may be an employer of other workers without realizing it.
And you can’t escape the reach of the rule by climbing through a bathroom window.
Who Is My Employee? 