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 their 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 UI purposes, temp agencies have a financial interest in lowering their UI costs by keeping employees from collecting UI while they are between assignments. Nationally, the temp industry has made a concerted effort to change state unemployment laws to make it more difficult for its employees to collect UI.
Under a Massachusetts law passed in 2003, a temporary worker may be deemed to have voluntarily quit his job if he 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. Under the statute, a “temporary help firm” is defined as “a firm that hires its own employees and assigns them to clients to support or supplement the client’s workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads and special assignments and projects;” and “temporary employee” as “an employee assigned to work for the clients of a temporary help firm.” 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) (emphasis added) or had good cause for failing to request another assignment. 430 CMR 4.04(8)(c). See BR-106729 (9/11/08) (claimant entitled to UI where neither 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 also must specify: (1) 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 (2) that failure to request a new assignment may affect eligibility for UI benefits. 430 CMR § 4.04 (8)(e). If the temp agency is unable to provide proof that it provided proper notice 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 did not 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’s being deemed to have voluntarily quit. Id.
The burden is on the employee to establish that she did request another assignment and, thus, was discharged rather than voluntarily quit. BR Issue ID: 0002 1746 84 (8/29/13); see also G.L. c. 151A, § 25(e)(1).
When the communication between the employee and the employer includes, in substance, a request for a new assignment, the Board is “unwilling to bootstrap this request [that the employer call back again after the holidays] for what was really a second contact into a requirement, under G.L. c. 151A, § 25(e)” (Board’s emphasis). BR-118830 (11/8/2011). The Board has also held that 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. BR-125041 (4/29/13). The Board held in that case that a claimant is entitled to UI 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 was about to end and that 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 UI benefits); BR-122974 (10/26/12) (holding that when the claimant and employer spoke three times during the claimant’s last day of work without offer of another position, the claimant met his statutory duty even where the employer told the claimant to contact the employer in the future and the claimant did not do so).
Where the communication between the claimant and his employer prior to the claimant’s filing for UI benefits fulfilled the statute’s purpose (to provide the temporary employer with actual notice of an employee’s availability for reassignment and the opportunity to offer a suitable reassignment), the claimant is entitled to benefits. BR-468131 (3/26/15). Thus, despite the language of 430 CMR 4.04(8)(b), a claimant need not expressly “request another work assignment” from the temporary staffing agency to qualify for unemployment benefits. BR-113223 (10/8/14).
The Board of Review has held that an employee of a temporary staffing agency who “notified the employer that his assignment was ending [or had become unsuitable] and expressed his intent to remain employed with the employer” was eligible for UI benefits when his employer failed to offer him any new assignment. See BR-113223 (10/8/14); BR-1883959 (2/27/15); BR – 124418 (4/22/13).
A claimant who worked for a temporary help agency satisfied her duty to contact the agency for reassignment when the employer’s senior branch manager, after informing the claimant that her assignment had ended, also informed the claimant that she would inform other representatives of the employer that claimant was still looking for work. This exchange between the claimant and the senior branch manager indicated to the Board’s satisfaction that the claimant, indeed, informed the employer that she would like to have another assignment. Thus, the Board concluded that the claimant’s separation from employment was due to lack of work and therefore not voluntary. BR-120299 (1/26/2012).
An employee need not make his request for a new assignment after termination of his current work assignment. BR-1154168 (3/26/15) (employee who requested another assignment 2 days prior to his current assignment ending was eligible for UI benefits). See BR-468131 (3/26/15) (employee who requested another assignment 2 weeks prior to her current assignment ending was eligible for UI benefits).
When a temporary staffing agency refused to offer an employee additional assignments after the employee quit his current assignment without prior notice, the employee’s separation from his employment with the temporary staffing agency is considered due to “discharge” not “quit.” BR-1786345 (1/26/15).
Where a claimant resigned to accept full-time employment with a temporary staffing agency, the claimant left in good faith for employment on a permanent, full-time basis. Although the nature of the work was temporary, the claimant’s relationship to the agency was permanent with the meaning of G.L. c. 151A, § 25(e). “In the instant case, the claimant’s new job carried higher wages and a much better commute. He had no reason to anticipate that the employment would end after only a few weeks. We can think of no reason to exclude him from unemployment benefits simply because his employer was in the business of supplying contingent services to client companies.” BR- Issue ID: 0010 6162 10 (9/19/14).
Where an employer informed a non-English speaking employee that the employee needed to contact the employer’s Milford office (and not the Marlborough office from where he usually worked) for his next assignment, and the employee misunderstood due to the language barrier and repeatedly tried to receive his next assignment at the Marlborough office, which would not give him any assignments, the Board awarded him benefits. See BR Issue ID: 0013 2758 21-02 (2015).
Note 1: Advocates should determine whether the particular assignment should even fall under the temporary employment rules; i.e., whether the assignment meets the statutory definition that the claimant has, rather, 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 contacted the temp agency at the end of the previous assignment to request a new assignment, he will be deemed to have “voluntarily quit” his 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 his 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 employer provided the claimant 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 they include the “prevailing conditions of work” test. SRH § 1230(B). BR-1586240 (8/26/14) (the Board ruled that claimant and employer merely engaged in a discussion of job possibilities and no direct job offer was made to claimant [SRH § 1115(A)]; “[f]urthermore, even if we were to conclude that a job offer was made, the job may not have been suitable employment for the claimant . . . where her income would have been reduced and her commute increased”). 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. A claimant has no obligation to accept a work assignment for which she is not properly trained. BR-12531 (7/21/14). The Board has held that a claimant who had a temporary placement with a client for 1.5 years and was offered a 6-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).
Additionally, where a claimant who previously held a full-time employment position with benefits at a company takes a job at a temp agency in hopes of gaining another permanent full-time position with benefits and is unable to do so after several months of working for the agency, his work with the agency is considered “unsuitable” and quitting such work will not disqualify him for benefits. See BR-998249 (10/31/14); see also Hunt v. Director of the Div. of Employment Security, 397 Mass. 46, 48, 489 N.E.2d 696, 697 (1986). (See Question 8, Suitability.)
Urgent and Compelling Reasons for Leaving a Temp Job
Even when an employee is determined to have quit his position with a temp agency, he will still qualify for UI benefits if he quit for an “urgent, compelling and necessitous” reason. G.L. c. 151A, § 25(e); see BR-10289560 (4/27/15). As with other kinds of employment, “[l]oss of transportation has been recognized as an urgent, compelling, and necessitous reason for leaving employment, where no reasonable transportation alternative is available.” BR-10289560 (4/27/15). When an employee’s vehicle breaks down, this is also an “urgent, compelling, and necessitous” reason for declining assignments outside of the employee’s local area. BR-10289560 (4/27/15). (See Question 29.)
Is a Temp Job a “Permanent Job”?
A position at a temporary staffing agency is considered “permanent” for the purposes of eligibility for leaving a job for a good faith new offer under G.L. c. 151A, § 25(e) if it has “a reasonable probability of continuing for a[n]… indefinite period of time.” BR-10181653 (11/3/14); see also BR-682574 (10/29/2014). There is a reasonable probability of permanent employment when there is no evidence that the position was “intended by both parties to be of finite, short-term duration.” BR-1929574 (5/25/15).