38. Employees of Temporary Help Agencies
Increasing numbers of workers, especially low wage workers, are forced to accept jobs with temporary agencies in order to support themselves and their families. Many of these workers are "temps" not out of choice, but because they are unable to secure permanent jobs. UI claimants who have lost their permanent jobs often accept temporary work to bridge the gap until they can locate a new permanent position. Doing so, unfortunately, may create problems for initial and continuing UI eligibility.
Temp agencies act as labor intermediaries, hiring employees and then sending them out to work for another firm. Because the temp agency is the employer for Unemployment Insurance purposes, temp agencies have a financial interest in lowering their UI costs and keeping employees from collecting UI while they are between assignments. Nationally, the temp industry has made a concerted effort to change state unemployment law to make it more difficult for its employees to collect UI.
Under a Massachusetts law passed in November 2003, a temporary worker may be deemed to have voluntarily quit his or her job if he or she files for unemployment benefits after the completion of an assignment without first contacting the temp agency for reassignment. G.L. c. 151A, § 25(e), as amended by St. 2003, c. 142, § 8. The legislation and implementing regulations further provide, however, that this failure to contact the temp agency for reassignment will not be deemed a voluntary quit "unless the claimant has been advised of the obligation in writing to contact the firm upon completion of an assignment." Id., 430 CMR § 4.04 (8)(b)(2). See BR-106729 (9/11/08) (Claimant entitled to UI where not advised in writing of contact requirement nor told of means by which to contact employer); BR-104765-OP (1/31/08) (same). Further, the employer's notice of this obligation must specify the method for requesting a new assignment in a manner that is consistent with the normal method and manner of communication between the employee and the temporary employment firm, and that failure to request a new assignment may affect eligibility for unemployment benefits. 430 CMR § 4.04 (8)(e). If the temp agency is unable to provide proof that proper notice was provided to the claimant, that employee will be deemed to have been laid off and therefore entitled to UI, if otherwise eligible.
The Board of Review has affirmed that 430 CMR § 4.04(8)(e) requires both notice of the need to request a new assignment (including the procedure for making that request) and notice that failure to request a new assignment may affect eligibility for unemployment benefits. BR-120231 (01/20/2012). In that case, the Board held that a laid-off temporary service employee was not disqualified for failing to request reassignment because the temporary agency’s notice failed to inform the employee that a failure to request reassignment may affect eligibility for UI benefits, even though the notice form did state that failure to request reassignment would result in the employee being deemed to have voluntarily quit. Id.
When a claimant can establish facts sufficient to show that he attempted to speak to a supervisor about a new assignment after a job has concluded, but the supervisor was too busy to speak to him, the claimant’s separation is not a disqualifying voluntary resignation. The Board held in BR-125041 (4/29/13) that a claimant is entitled to unemployment insurance benefits when he attempted to request reassignment and the temp agency did not offer the claimant a new assignment. See also BR-124418 (3/22/13) (holding that temp service employee told that his current assignment is about to end, and nothing in the way of a new assignment would be forthcoming, meets the “call-in” requirements under G.L. c. 151A, § 25(e) and claimant is entitled to unemployment benefits).
Note 1: Advocates should determine whether the particular assignment should even fall under the temporary employment rules, i.e, does the assignment meet the statutory definition that the claimant has been hired in “work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects." G.L. c. 151A, § 25(e), ¶9.
Note 2: If the temp agency provided proper notice and the employee is unable to prove to DUA that he or she contacted the temp agency at the end of the previous assignment to request a new assignment, she or he will be deemed to have "voluntarily quit" her job. Often, a worker's cell phone or email records are helpful to document contact with the temp agency. Where the worker returns to the temp agency at the time of receiving her final paycheck, any conversation that occurs at that time regarding future work should satisfy the "seeking reassignment" requirement.
Note 3: Although the statute and DUA's regulations are silent on these matters, UI advocates should explore possible due process claims. For example, if the claimant was provided notice but in a language she cannot read, arguably the temp agency has not met its burden to provide proper notice. Likewise, it often happens that employees work for a temp agency and take months off before returning to seek work. If the employee was provided notice about the requirement to seek reassignment only at the time of her initial hire, it is reasonable to argue that the employer had a duty to provide new notice when she was rehired or even at the time the most recent assignment ended. 430 CMR § 4.04 et seq.
Temp agencies and "suitable work"
The requirement that an employee at a temporary agency must seek reassignment does not mean that the new position must be accepted in every case. The suitable work provisions still apply, and include the "prevailing conditions of work" test. SRH § 1230(B). For example, if a claimant finished an assignment as a secretary and is offered an assignment as a cleaner, this would not constitute "suitable work" and a refusal should not result in disqualification. And the Board has held that a claimant who had a temporary placement with a client for one and a half years and was offered a six-week assignment with another client doing similar work at a lower rate of pay, had good cause for declining the offer as it was not suitable. BR-111185 (3/3/10). See Question 8, Suitability.