The 1980s British band the Thompson Twins were not twins. They didn’t even look alike. Instead their name came from a comic strip called The Adventures of Tintin, which featured detectives named Thompson and Thompson, who were also not twins.
I don’t know why the comic strip seemed like a good name for a band. I’ve always thought a good name for a band would be Cantaloupe. Not saying I’m right. My point is just that there’s a lot of room here for a difference of opinion on band names.
The only reason I remember the Thompson Twins is that in 1983, they released a song called “Hold Me Now.” (I have a picture, pinned to my wall…) The song received a lot of air time, then faded to a distant memory, only to be revived when it pops up on one of the 80s music channels. Or in this blog post.
“Hold Me Now” is also the theme for today’s post. We’re not going so far as to recommend “Lovin’ Touchin’ Squeezin’.” That could border on sexual harassment. Instead, think just a friendly hug.
We’re talking, of course, about joint employment.
The usual strategy with joint employment is to avoid it all costs. Avoid supervising staffing agency temps. Do not direct their work. Don’t hire, fire, schedule, discipline, or maintain personnel records.
And that’s the right strategy when it’s possible to avoid joint employment. But sometimes avoiding it isn’t possible.
Often staffing agency temps are used to fill gaps where you don’t have enough employees. Sometimes they’re seasonal, and sometimes temp-to-hire. But if they’re intermingled with your regular employees, doing the same work, reporting to the same supervisor, and taking the same direction on how to perform the job, you’re probably already a joint employer.
Is that bad? Not necessarily.
Joint employment is not illegal. With one exception (below), joint employment is not a problem unless the primary employer — the staffing agency — doesn’t do what it’s supposed to do. If the agency doesn’t pay minimum wage or overtime, for example, or miscalculates the regular rate of pay, then both joint employers are 100% liable for the violation. An aggrieved plaintiff can recover from either party.
So if you’re already a joint employer, the goal should be to prevent the harms. That’s when you might want to embrace joint employment. Once you are a joint employer, you’re a joint employer. You can’t be more or less; it’s binary.
If you’re already a joint employer, you can lean into it. Make sure that agency workers are clocking in and out at the proper times. Make sure they don’t work off the clock. Make sure they take a proper meal break. Make sure they are being paid a minimum wage and overtime. You can even ask them to confirm that they’re being paid correctly and that they have no pay dispute with the agency. They’ll probably appreciate the show of concern.
If you’re already a joint employer, you can also direct and control their work, the same way you direct your own employees. Exerting more control will not change the result. Exerting more control may also help you ensure quality standards and enhance the customer experience.
But again, this strategy is only appropriate if you’re already a joint employer.
I wrote above that there is one exception to joint employment, for the most part, not being a problem if the staffing agency does what it’s supposed to do as an employer.
The exception is the National Labor Relations Act. If you’re a joint employer under the NLRA, you will have an obligation to bargain with a primary employer’s union. A joint employer must respect the right of its employees to engage in protected concerted activity. Employees may strike or picket a joint employer, the same way it can strike or picket a primary employer.
The advice you usually hear is to avoid joint employment. But that’s not necessarily the right strategy for everyone. Sometimes, it’s ok to give it a nice embrace.
For a related Pink Floyd themed post, click here.
© 2024 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.