August 2025 Volume 7

OPERATIONS & MANAGEMENT

In short, the contract can matter a lot in these circumstances, and sometimes when you are negotiating or signing up, you are focused on the cost and payment terms – and not these kinds of details. Second, and related to potential claims, I would want to know: Does the agency employer have arbitration agreements with its employees? If so, would claims an employee brings against you also be subject to arbitration? Generally, two parties can agree to arbitrate claims – but if you are not a party to that agreement, you may not be able to compel arbitration. If this is something you would want, I like to see the arbitration agreement specifically say that it covers any claim the individual employee may have against any entity where he/she is placed for work (or words to this effect). Third, you need to have some system and clear expectations as to how you handle concerns and/or requests raised by these temporary employees. As an example, if a temporary/contract employee requested an accommodation in their work (such as due to a disability under the Americans with Disabilities Act or pregnancy under the Pregnant Workers Fairness Act), how do you address it? As an initial step, I could understand that you would want the individual’s employer – the agency – to take the lead. But these requests require that the “employer” engage in the interactive process – and part of that is evaluating how the request works with the job. For example, if the employee needs to sit, can the job allow for that and/or is there another position which does? Practically speaking, your team has this knowledge and (I would think) you would want (a) the agency to engage in the process with knowledge, and (b) avoid the agency employer just saying no, because of both staffing issues and potential claims.

Similarly, what do you do if you have a complaint of alleged harassment by or involving a temporary/contract employee? You have an obligation to investigate and address it – regardless of your “employer” status – so you need to make sure you are set up to do so. These are just some common issues for temporary/contract employees. As always, while I continue to try to be informative and helpful, please know that this is not legal advice. Please consult your own counsel to address these – and issues generally – concerning any contract/temporary workers. Johanna Fabrizio Parker Partner, Labor & Employment Benesch Friedlander Coplan & Aronoff LLP Email: JParker@beneschlaw.com Phone: 216-363-4585

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FIA MAGAZINE | AUGUST 2025 31