Checklist · Labor and Employment

Using a Staffing Agency or Pursuing a Temp Worker Claim: A Practical Checklist

8 U.S.C. § 1324

Type
Checklist
Jurisdiction
National
Date
2025-04-30
Topic
Labor and Employment

This checklist covers a staffing relationship from the client's diligence before the first placement through wage audits, safety allocation, injury response, and a temp worker's claim. It opens with the organizing rule that joint employment is decided statute by statute, then gives the client diligence sequence built around the workers' compensation certificate and the payroll audit right, because an uninsured agency transfers direct liability and a client with no audit right learns of a payroll failure from the complaint. It provides the timekeeping and overtime controls that address the failures specific to staffing — pre-shift time the client knows about and the agency never captures, hours across two assignments, and bonuses paid directly that never enter the regular rate. It gives the safety allocation with orientation before first shift and the agency site visit that answers the multi-employer worksite citation. It supplies an injury sequence built around finding the third-party defendant before exclusivity forecloses the obvious one, a temp worker claim evaluation, and a no-poach screen.

Using a Staffing Agency or Pursuing a Temp Worker Claim: A Practical Checklist

Labor and Employment > Staffing Agencies, Day Labor, and Joint Employment | Published 30 April 2025 - Updated 27 April 2026 | UpLaw - uplaw.us

Which sequence do you need?

☐ Before the first placement — Part 1. ⚠️ The certificate and the audit right. ☐ Wage and timekeeping controls — Part 2. ⚠️ "We paid the agency" is not a defense. ☐ Safety — Part 3. ⚠️ Orientation before the first shift, documented. ☐ Someone was injured — Part 4. ⚠️ Find the third-party defendant in the first week. ☐ Harassment or an accommodation request — Part 5. ☐ A temp worker claim — Part 6. ☐ Day labor — Part 7. ☐ Contract terms — Part 8. ☐ Annual audit — Part 9.

⚠️ The framing that matters most: joint employment is decided statute by statute. The same two companies can be joint employers under one law and not another for the identical relationship. Never ask the general question — ask "for this statute, under this test, on these facts."

Part 1 — Client diligence before the first placement

☐ ⚠️ WORKERS' COMPENSATION CERTIFICATE — current ☐ correct legal entity ☐ correct coverage territory ☐ expiration calendared ☐ An uninsured agency transfers direct compensation liability to the client and destroys exclusivity. ☐ General liability, employment practices, and auto certificates, with additional insured endorsements on the specified forms ☐ ☐ ⚠️ NEGOTIATE A CLIENT PAYROLL AUDIT RIGHT over records for the client's own placed workers ☐ A client with no audit right learns of the agency's failure from the complaint. ☐ Confirm the agency completes verification under 8 U.S.C. § 1324a and 8 C.F.R. Part 274a — ⚠️ and that the client does NOT re-verify, which is itself a violation ☐ ☐ Screening practices reviewed — what is performed, by whom, with adverse action steps ☐ and whether the client will be directing decisions on reports, which makes it a user with its own obligations ☐ ☐ Exemption classification of placed workers checked against duties actually performed, not titles ☐ (cf. 29 C.F.R. Part 541) ☐ Agency financial capacity — ⚠️ an indemnity from a thinly capitalized agency is worth what its balance sheet is worth. Require insurance behind it. ☐ ⚠️ NO-POACH SCREEN — is there any agreement with this agency, or among clients, not to hire each other's workers, or any understanding about what temps will be paid? ☐ If yes, stop it today — 15 U.S.C. § 1, prosecuted criminally. ☐ Check whether this State has a client liability statute making the client expressly liable for the agency's wage and compensation failures ☐ Cite ______

Part 2 — Wage and timekeeping controls

⚠️ Joint employers are jointly and severally liable for the full amount. The client paid an invoice; it did not pay wages.

☐ Determine the joint employment posture under the economic reality test at 29 U.S.C. § 203 — who hires and fires ______ who supervises and sets schedules ______ who sets pay ______ who keeps records ______ whose premises and equipment ______ ☐ ⚠️ TIE PAY TO THE CLIENT'S OWN TIME DATA where the client controls the clock ☐ Reconciliation obligation stated in the agreement ☐ ☐ ⚠️ CAPTURE PRE-SHIFT AND POST-SHIFT TIME the operation requires: • ☐ Badge-in to station walking time ☐ Security screening ☐ Waiting for equipment ☐ Mandatory pre-shift meetings ☐ Donning and doffing ☐ Post-shift cleanup The client knows about these; the agency does not; neither records them. This is the most common finding in staffing wage cases. ☐ ⚠️ OVERTIME AGGREGATION across two assignments through the same agency in one week ☐ obligation stated in the agreement ☐ ☐ ⚠️ BONUS NOTIFICATION — any payment the client makes directly to a placed worker must be reported to the agency so it enters the regular rate ☐ (computation rules at 29 C.F.R. Part 778) ☐ Automatic meal deductions — confirm the operation actually permits the break ☐ ☐ Rounding applied to client clock data — confirm it is neutral ☐ ☐ Sample audit quarterly — pull ten placed workers, match the client's clock to the agency's payroll register ☐ Variances investigated ☐ ☐ Exposure understood: minimum wage 29 U.S.C. § 206 ☐ overtime 29 U.S.C. § 207 ☐ liquidated damages and fees 29 U.S.C. § 216 ☐

Part 3 — Safety allocation

⚠️ Temporary workers are injured at materially higher rates in the same jobs. The failure mode is the training gap: the host assumes the agency trained the worker, the agency assumes the host will, and the worker receives a badge and a machine.

☐ Written allocation in the agreement naming who trains on what ☐ ☐ HOST responsibilities: site-specific hazard training ☐ equipment ☐ protective equipment for site-specific hazards ☐ day-to-day safety supervision ☐ ☐ AGENCY responsibilities: general safety awareness training ☐ inquiring about the hazards the worker will face ☐ ⚠️ not placing a worker into a known, unaddressed hazard ☐ ☐ ⚠️ SITE ORIENTATION BEFORE THE FIRST SHIFT, DOCUMENTED PER WORKER — date ☐ content ☐ trainer ☐ worker acknowledgment ☐ ☐ ⚠️ AGENCY SITE-VISIT RIGHT, actually exercised ☐ Report retained ☐ An agency that placed workers into a hazard it never looked at has a weak answer to an exposing-employer citation. ☐ Stop-work right the worker can use without losing the assignment ☐ ☐ Injury and illness recording allocated — generally the party with day-to-day supervision ☐ ☐ Multi-employer worksite analysis — who is the creating ☐ exposing ☐ correcting ☐ controlling ☐ employer for each hazard? ⚠️ A staffing client is very often the controlling AND exposing employer at once. ☐ Obligations run under 29 U.S.C. § 654, within 29 U.S.C. § 651, with standards at 29 C.F.R. Part 1910 ☐ ☐ ⚠️ Sanitation shifts, demolition, and confined space are the highest-risk configurations for placed workers. Verify training specifically for these ☐

Part 4 — Someone was injured

☐ Immediate: aid ☐ emergency services ☐ scene secured ☐ both agency and client notified ☐ ☐ Document within the hour: photographs ☐ witnesses including other contractors ☐ the equipment and its guarding ☐ the worker's training record ☐ the site orientation record ☐ ☐ Preserve the equipment and any maintenance history ☐ ☐ Determine the compensation posture: • Whose policy responds ______ • ⚠️ Is the client a SPECIAL EMPLOYER under the borrowed servant doctrine in this State? ☐ Yes → exclusivity likely bars suit against the client ☐ No ☐ Narrowed • Did the agreement expressly designate the client a special employer, or expressly not? ______ • Was the agency uninsured? ⚠️ If so, the client may face direct compensation liability and lose exclusivity. ☐ ⚠️ FIND THE THIRD-PARTY DEFENDANT IN THE FIRST WEEK — equipment manufacturer ☐ property owner ☐ maintenance contractor ☐ another contractor on the site ☐ component supplier ☐ This is usually the only real avenue for a badly injured temp, and nobody else will look for it. Exclusivity forecloses the obvious defendant. ☐ Intentional tort exception — did the client's conduct exceed negligence? ______ ☐ Safety citation exposure for both parties — see Part 3 ☐ ☐ Experience rating note: ⚠️ rating follows the policyholder, so a client using temps for its most dangerous work moves injury costs onto the agency's modification.

Part 5 — Harassment and accommodation

☐ ⚠️ BOTH entities are exposed. Client under 42 U.S.C. § 2000e as joint employer controlling the worksite and the harasser; agency once on notice, controlling whether the placement continues. ☐ ⚠️ AN AGENCY THAT ENDS THE ASSIGNMENT INSTEAD OF ADDRESSING THE COMPLAINT HAS PROBABLY RETALIATED. Correct response: raise it with the client ☐ seek correction ☐ reassign only if the worker prefers it ☐ document all three ☐ ☐ Accommodation under 42 U.S.C. § 12112 — client controls the physical accommodation ☐ agency controls placement and holds medical information ☐ ⚠️ neither discharges the interactive process alone ☐ ☐ ⚠️ An agency that screens out a worker to avoid an accommodation request has made the decision the statute forbids. ☐ ⚠️ REPLACEMENT REQUESTS REQUIRE A STATED REASON. Log maintained ☐ ☐ Screening adverse action — pre-adverse notice with the report ☐ dispute window ☐ final notice ☐ ☐ See the hiring and background checks guide.

Part 6 — Pursuing a temp worker claim

☐ 1. Name BOTH entities and plead joint employment under the statute-specific test ☐ ☐ 2. Wage claim — ⚠️ the client's own time clock is usually better evidence than the agency's payroll. • Pre-shift/post-shift time ______ • Combined-assignment overtime ______ • Direct bonuses excluded from the regular rate ______ • Meal deductions ______ • Exemption classification ______ ☐ 3. ⚠️ In an injury case, identify the non-employer defendant immediately. ☐ 4. Discrimination or harassment — both entities, different theories; preserve the report and response ☐ ☐ 5. Retaliation where the assignment ended after a complaint ☐ ☐ 6. Check for a State client liability statute ☐ ☐ 7. Labor relations — joint employer under the standard in effect when the charge is filed: 29 U.S.C. § 152, 29 U.S.C. § 157, 29 U.S.C. § 158; cf. Boire v. Greyhound Corp. ☐ ☐ 8. Undefined statutes → common-law agency: Nationwide Mutual Insurance v. Darden, Community for Creative Non-Violence v. Reid, Clackamas Gastroenterology Associates v. Wells ☐ ☐ 9. Preservation demands to BOTH — client clock and orientation records; agency payroll, training file, site-visit reports, replacement request log ☐ ☐ 10. Damages per workweek, no netting; add liquidated damages and fees ☐

Part 7 — Day labor

☐ ⚠️ A day laborer is an employee of whoever hires them for the day. ☐ Before getting in the vehicle: ⚠️ photograph the vehicle and license plate ☐ get a name and phone number ☐ agree the rate and hours out loud, with a witness ☐ ☐ During the day: start and end time ☐ the address ☐ what work was performed ☐ photograph the site ☐ ☐ Screen for: nonpayment ☐ underpayment against the agreed rate ☐ deductions for transportation, tools, or equipment ☐ dangerous assignments without training or protective equipment ☐ injury with no coverage ☐ immigration threats ☐ ☐ ⚠️ Wage and safety laws apply regardless of immigration status, though remedies differ — cf. Hoffman Plastic Compounds v. NLRB ☐ ☐ Use a day labor center where one exists ☐ Check for a municipal ordinance requiring written terms ☐ Check for a State wage theft statute with criminal penalties or a lien ☐

Part 8 — Contract terms

☐ Employer designation, with an acknowledgment it does not control statutory analysis ☐ ☐ ⚠️ Client payroll audit right ☐ ☐ ⚠️ Timekeeping source — whose system, how client-site time is captured, who reconciles ☐ ☐ Overtime aggregation obligation ☐ Bonus notification duty ☐ ☐ Safety allocation — general vs. site-specific training ☐ protective equipment ☐ orientation before first shift ☐ agency site-visit right ☐ stop-work right ☐ ☐ ⚠️ Workers' compensation — whose policy ☐ certificate delivery ☐ express special-employer statement ☐ ☐ Insurance — limits ☐ forms ☐ additional insured ☐ waiver of subrogation ☐ ☐ Indemnity — mutual ☐ mirroring the allocations ☐ backed by insurance ☐ ☐ Screening — scope ☐ adverse action ☐ who decides ☐ ☐ Verification — agency completes ☐ client does not re-verify ☐ ☐ Conversion fee — amount ☐ period ☐ definition of a hire ☐ notice ☐ ⚠️ binds the client, not usually the worker ☐ Records and audit — retention ☐ access ☐ cooperation ☐ ☐ Termination and transition ☐ ☐ ⚠️ REFUSE any term making a worker's wage or safety remedy the exclusive responsibility of one party.

Part 9 — Annual audit

Client: ☐ Compensation certificate current, right entity, right territory ☐ ☐ Payroll sample matched against the client's own clock ☐ variances resolved ☐ ☐ Overtime aggregation verified ☐ Pre-shift and post-shift time captured ☐ ☐ Site orientation documented for every placed worker before first shift ☐ ☐ Screening compliance; is the client directing decisions on reports? ☐ ☐ Verification by the agency only ☐ ☐ Insurance certificates and endorsements verified against the contract ☐ ☐ ⚠️ No-poach and wage-fixing screen ☐ ☐ Injury and near-miss records reviewed for pattern ☐

Agency: ☐ Site visits performed, reports retained ☐ ☐ Client orientation confirmed per worker ☐ ☐ Replacement requests carry a stated reason ☐ ☐ Hours the client directed but did not report — sampled ☐ ☐ Exemption classifications tested against actual duties (cf. 29 C.F.R. Part 541, regular rate at 29 C.F.R. Part 778) ☐ ☐ Worker restrictive covenants enforceable in that State, including under low-wage worker bans ☐ ☐ Harassment and safety complaints logged with the response ☐

Part 10 — Sector notes

☐ Warehousing and logistics — pre-shift and post-shift time ☐ peak-season overtime aggregation ☐ powered industrial truck training neither party documented ☐ client liability statutes name this sector first ☐ ⚠️ Manufacturing and food processing — SANITATION SHIFTS are the single highest-risk configuration in the contingent workforce: night work, cleaning chemicals, disassembled equipment. Verify training specifically ☐ ☐ Construction — multi-employer worksite at full strength ☐ prevailing wage on public work ☐ trade licensure ☐ See the prevailing wage guide. ☐ Healthcare — licensure and credentialing ☐ ⚠️ a facility directing clinical judgment is a joint employer regardless of contract language ☐ malpractice coverage allocation stated ☐ travel arrangements: cancellation, stipend, tax home ☐ ☐ Hospitality and events — ⚠️ tip credit applied by an agency to a client's tipped positions is a recurring violation, because neither party tracks tip-producing versus non-tip-producing time ☐ ☐ Clerical and professional — exemption misclassification ☐ salary basis fragility where pay tracks assignment weeks rather than a guaranteed salary ☐ ☐ Agriculture — farm labor contractors have a dedicated registration and disclosure regime. See the farm labor guide. ☐ Janitorial and building services — successorship on contract turnover, regulated by ordinance in a growing number of cities ☐

Part 11 — Records to hold

The agency: ☐ Application and screening file with adverse action correspondence ☐ ☐ Verification records ☐ ☐ General safety training record per worker ☐ ☐ Assignment history — client, dates, job description, hazards disclosed ☐ ☐ Time records as received and as paid ☐ ☐ Payroll registers reconciling to the client's clock ☐ ☐ Site-visit reports ☐ ☐ Replacement requests with stated reasons ☐ ☐ Harassment and safety complaints with the response ☐ ☐ Compensation policy and certificates ☐

The client: ☐ The staffing agreement with all amendments ☐ ☐ Certificates of insurance and compensation, current ☐ ☐ Site orientation record per placed worker — date, content, acknowledgment ☐ ☐ Its own time clock data for placed workers ☐ ☐ Payroll audit results ☐ ☐ Bonus and incentive payments made directly, with notice to the agency ☐ ☐ Replacement requests it made, and the reason ☐ ☐ Injury and near-miss records for placed workers ☐

☐ ⚠️ The asymmetry that decides cases: the client controls the time clock and the worksite; the agency controls the payroll and the training file. In litigation each needs the other's records, and the party that never asked for them during the relationship is at a serious disadvantage. A contractual records-access right, exercised routinely rather than after a claim, is the cheapest protection available to either side. ☐ Retention to the longest applicable limitations period — wage, safety recordkeeping, compensation, discrimination, and verification each have their own; separate clocks on overlapping records produce gaps at the worst moment ☐

Part 12 — Three questions to ask first

☐ 1. ⚠️ Which statute is actually in front of me, and what test does it use? Wage, safety, labor relations, discrimination, compensation, and verification each answer joint employment differently. A memo saying "the client is a joint employer" without naming the statute is not an answer. ☐ 2. ⚠️ Who controlled the thing that went wrong? The time clock, the guard on the machine, the supervisor who made the remark, the decision to end the assignment. Control over the specific failure is what the tests are measuring. ☐ 3. ⚠️ What did each party document, and when? The orientation record, the payroll audit, the site-visit report, the replacement request with its reason. These matters are decided on documents created before anyone knew there would be a dispute.

Part 13 — Professional employer organizations

Use this part only where the arrangement converts a client's existing workers into co-employees, rather than supplying new ones. ⚠️ A professional employer organization is not a staffing agency, and conflating them causes real errors.

☐ Confirm which arrangement this is — co-employment of existing staff ☐ or supply of new workers ☐ ☐ ⚠️ Tax employer status — may the organization use its own identification number for the client's workers? ☐ Is it certified? ☐ An uncertified arrangement can leave the client liable for taxes it already paid to the organization. ☐ Benefit plan sponsorship — whose plan is it? ☐ That determines fiduciary duty and the applicable rules. ☐ ⚠️ Workers' compensation — whose policy ☐ certificate in hand ☐ A client assuming it is covered without confirming can be badly wrong. ☐ Termination planning — on termination the workers revert to the client and coverage, plans, and payroll must be reconstructed on short notice ☐ transition period ☐ data return ☐ ☐ ⚠️ Joint employment is the design here, not a risk to avoid — but the client remains liable for its own conduct, including discrimination and safety ☐ ☐ Direction and control of the work stays with the client — confirm the agreement says so and that operations match ☐

Related Documents