Abstract:Labor dispatch from the economic point of view, is conducive to promoting the flexible employment of employees, employers hiring risk control, improve the professional service employment service. To send workers to protect, strict regulation on labor dispatch company's establishment and operation method, many states American, use common employer federal law case in the theory of the receiving unit commitment on the minimum wage, vacation, health and safety, anti employment discrimination, employer liability.

 

The concept and development of labor dispatch, America

In USA, engage in human resources management, employee benefits, salary and compensation outsourcing services called occupation (employer organizationProfessional employer organizations, PEOsEmployee Leasing Firm () orEmployee leasing companyThe use of occupation); provide employer organization or leasing agency employee organization called client company (Client companyThe employer (or receiving)Recipient employer). Occupation employer organizations or Employee Leasing Firm and client company or to the employer and used in China"The labor dispatch agencies"And"The accepting unit"The appellation of the corresponding.

American popularity began in labor dispatch20Century70Age. The labor dispatch is popular mainly in special industries, for example, chemical and petroleum industries, engineering and design industry, the construction industry etc.. These industries often require different skills and talents, employers hire (by employeesEmployee leasing) form, can complement the lack of employer employee skills, or allow it to engage in short-term projects, insufficient or compensate for their employer employee numbers. But today, labor dispatch has penetrated into every field of the economy as a whole, from"Gatekeeper"To the chief executive, all levels of the labor dispatch has developed rapidly. Moreover, the reception of the dispatch unit is mainly small and medium enterprises, now, since the dispatch organization can provide human resources management and professional service, many of the larger employers to send workers. The development speed very quickly America labor dispatch. According to America occupation employer organization (the National FederationNational Association of Professional Employer Organizations, NAPEOThe survey),NAPEOEstimation,1993Years, America dispatched workers to160Million people. According to the latest data,NAPEOEstimation, USA existing about200-300Million dispatch workers. According to theNAPEOMember survey, in the past6Years, USA occupation employer organization industry average annual growth of more than20%At present, there are about700Home occupation employer organization in50States provide various services. The total income occupation employer organization industry creation is about510Billion dollars. 

Can be seen from the above data, America labor dispatching industry in the past30The rapid development of years, expanding the size of. But the number of employers' organisation from the occupation, occupation number of employers' organizations are not many, only about700Home, the average state only a dozen occupation employer organization, it explains America occupation average larger employers organization. Because the employer organization of the larger occupation occupation, employer organizations can play a scale effect and advantage of professional service, which is the smaller employers difficult, important factors and occupation employer organization and development.

 

Analysis of the causes of two, USA labor dispatching industry development

Many factors America dispatch popular, these factors can be summarized in three: supply factors, demand factors and labor factors.

(a) supply factors

From the supply perspective, the change of life style that some people are more willing to engage in a temporary assignment. For example, more and more women to participate in the work, which needs to pay the family affairs women choose to send the work, they can choose the non full time job, or retained when refuse some dispatch work right the family needs. Some employees choose to send work is because of the diversity of work content as a way of life, and dispatched work can meet this preference, these people include not only the general staff and construction workers, including lawyers, computer experts, stock broker, pharmacists and other professionals, and even executives. At the same time, many retirees, including professionals and executives, as has long been engaged in consulting work, retirement, may also choose to send work. In addition, because of the company's downsizing or restructuring and walked off the job employees, may choose the form of labor dispatch, before finding the right job will be sent to work as a temporary work.

From the dispatch organization service, because the occupation employer organizations can provide professional human resource service, training, employee handbook, safety service and better communication, employee job satisfaction and efficiency may be improved, it is employee selection has become one of the factors of dispatched employees. But, because of the size effect, occupation employer organization may provide those small companies can not afford the benefits for employees, for example, health insurance, life insurance, dental and vision care, retirement savings plan, work consultation, education and welfare, the employee benefits are often small businesses can not afford to management. Moreover, by labor dispatch, dispatch employees can vary in client company, can avoid employee welfare losses. In addition, in America, in order to avoid increasing the burden of small enterprises, many law implement the exemption for small businesses, employed by a small business employees cannot be protected these laws. For example, USA although established many anti employment discrimination laws, these laws are usually about the size of a small employers to implement the exemption. For example,1964"Bill of rights" of the year7Chapter of race, color, religion prohibits employers, gender or nationality based on the implementation of discrimination, but only for hire15Above employee employer.1967Year "hire" ban on age discrimination act40Individuals over the age of the age discrimination, but only for hire20Above employee employer.1990Year "USA Disabilities Act" is the guarantee of basic legal persons, the law provides for the employment problem of it, is the main legal disability discrimination in employment, but this method is only applicable to hire15Employees or more employers. Therefore, if the employee directly employed in these small employers, employees will not be protected these laws. Because the occupation employers' organizations are usually of a larger scale, occupation employer organization employees can be protected by the law. At this point, but also one of the advantages to send workers employed directly by the employer with employee.

(two) the demand factors

From the perspective of demand, demand factor seems to be more important than the supply factors. Employee benefits (Employment benefit) cost and government regulation is an important factor, selection of dispatched workers. In America, total employee welfare costs relative to wages and increased rate. According to USA (chamber of CommerceChamber of CommerceStatistics of the year),1929Years, all industries America employee benefits(Supplement wages or salary)A total of6.62Billion dollars, to1992Years, this figure has become6290Billion dollars.1929Years, employee benefit accounts for wages or salary ratio1.3%, to1992Years, this proportion has become21.3%. Therefore, the employee welfare costs increase is an important reason for employers to use dispatched workers, especially those of small enterprises, due to the smaller, not at a preferential price for employees to buy all kinds of welfare; and dispatch company as employee size and diversity, can buy employee benefits to price more preferential. Moreover, hire (Hiring) costs, include selecting, training and the employment decision may face discrimination litigation risk, can urge the employers tend to use the dispatched workers, rather than directly employed workers. In short, the labor dispatch company can make full use of the advantage of scale, reduce the cost of hiring. But, with the development of technology, many companies need to invest large amounts of capital to buy equipment, operation and maintenance of the equipment, the company to become a professional company to send staff to other companies, rental equipment, computer and other professional services, which also promoted the development of the labor dispatching industry.

In addition to reducing employee welfare costs, labor outsourcing company in order to provide advisory services and the employer has also played an increasingly important role. Labor dispatching companies can provide management advice, accounting and data processing help and other useful advice for the client company. Now the human resources management becomes more and more complex, such as employee relationship, health insurance, industrial injury compensation, wages, payroll taxes, unemployment insurance and other content is very complex, many employers are not professional knowledge of the field. And the company sent through our professional service, can for client company to manage these complex affairs. But the law relating to labour, more and more complex, the employer's liability and the risk is more and more big, occupation and professional employer organization because of the scale, can effectively control the risk, reduce risk and liability of the client company. For example, according to the Small Business Administration (AmericanU.S. Small Business Administration, SBA)Statistics, from1980Years to2000The number of years, employment policies and laws and regulations of the increase of about60%Small and medium-sized enterprises, employers now need to spend about1/4Time engaged in work related to employment (writtenEmployment-related paperwork). Occupation employer organization can help employers in these heavy work, help employers better comply with labor laws and regulations. In a word, through the division of labor, the client company can concentrate on their own business, rather than the management of human resources and the employment risk control.

(three) the factors

From the point of view, dispatched workers is not easy to organize trade unions. Statistics show that, the non full time employees to join the union compared to the proportion of full-time employees to join the union ratio less than half. Although the dispatched workers not equal to part-time workers, because many dispatched workers may be engaged in full-time work, but to send the enthusiasm of the workers unions less than hiring direct employer employee. Due to dispersion in different employers, these employers may have very big difference, dispatched workers lack the common interests, to send workers to organize trade unions is also higher than that of direct hire workers. For this reason, many union America lobbying the state government through legislation to ban the labor dispatch. But from the client company's point of view, the dispatched workers is not easy to organize a labor union, the client company may be keen to send workers.

Dispatch also has the convenience of the government, through the occupation employer organization, government were not taxes on many small businesses, can direct taxes on the dispatch organization of large scale. The government and the small enterprise and employee communication through the dispatch organization becomes easier.

(four) nodules

Can be seen from appearance, labor and economic development reasons behind it, the dispatched labor form satisfies the needs of employees in flexible employment, to reduce the cost and risk of the employer, improve market division of labor and specialization degree have a positive role, especially in the accepted units to provide advice and services, it has a broad development space to reduce the cost of employer. In some special industries, such as security, construction and other industries, the labor dispatch agencies in the recruitment, selection, training of employees, human resource management, plays the employer itself is unable to play the role of. Moreover, because the legislation relating to labor protection and employee benefits more and more complex, employer costs and facing increasing risks, send professional services company through labor, not only can reduce the cost of employing units, improve the efficiency of human resource management and professional level, in a certain sense, this kind of professional division of labor but also conducive to the protection of labor rights. As for the influence of dispatched workers union, I think, from the receiving unit, the dispatched workers and accept the unit of employment relationship fuzzy, sent workers to disperse and and acceptance of unit identity is weak, to send workers to join unions accept positive unit may be affected. But if the dispatched work agency and sent two workers' perspective, through the dispatch organization, can be many employers may be scattered in different workers in the dispatch organization, sent workers in the dispatch organization within the union, and the use of dispatched workers scale advantage and structure of collective bargaining sending machine, strive for more favorable working conditions. Therefore, the labor dispatch does not seem bound to weaken the protection of workers union.

In USA, labor dispatch economic rationality has been clearly recognized government. For example, in the New York2002Clear a state law passed in,"Occupation employer organizations provide valuable services, for the state of business and the public so, rights and obligations of employers' organizations should be a clear occupation."Alabama2006The employer organizations Registration Act ("occupationProfessional Employer Organization Registration Act) "also made it clear that the positive role of labor dispatch play, the law of the"The labor dispatch is a new industry in Alabama, occupation employer organization provides more and more opportunities to develop personnel to meet the need for employers and more efficient way, and provides some if not occupation employer organization employees may be unable to obtain the employee benefits for employees."

But the labor dispatch legal problems caused by the same concern. How to guarantee the rights and benefits of workers and employees enjoy the same directly employed, how to share the burden and responsibility to send and accept between units, is the legislation to solve the problem.

 

Regulation three, America both state and federal law on labor dispatch

(a) the relevant provisions of state law

Many states America formulated the special law on labor dispatch regulation. Generally speaking, the object of these state law regulation include Employee Leasing Firm (Employee leasing company)--That is the establishment and capital labor outsourcing company requirement, the content of the labor dispatch agreement, employee work-related injury insurance (Worker 's compensation insurance) and the share of unemployed insurance expenses and the dispatch organization and accept the share in other aspects of the obligation and responsibility unit. Besides making the regulation of labor dispatch special legal issues, labor dispatch is the law in many states in the insurance or other areas of.

1On establishment of labor dispatching company and capital requirements

USA ten state law requires Employee Leasing Firm before opening to the state of registration must be. These states including Nevada, New Mexico, Utah, Oregon, New Hampshire, Arkansas, Florida, Minnesota and tennessee,1995Years, Texas abolished the requirement. And some states of the Employee Leasing Firm to set up a strict. For example, Florida in the business and occupation supervision department (Department of Business and Professional RegulationSet up a special committee) under the Employee Leasing Firm (Board of Employee Leasing CompanyResponsible for the supervision of the Employee Leasing Firm), the Commission has issued the rule of power. The approval of the state to the Employee Leasing Firm set up and related matters are very strict. The state laws and regulations, the Employee Leasing Firm and"Controller (Controlling person)"To the business and occupation supervision department to submit a written application to license (License). Moreover, any individual or organization, in the intent to purchase (Purchase(or purchase)Acquire) has been the control permits or registration agency, must first obtain the approval of the relevant change of ownership of the committee. Have licensed or registered institution of the shareholders or partners to acquire other shareholders or partners control, must be subject to the approval of the board of. The law also provides, licensed Employee Leasing Firm must have at least a registered in the service of the agent as well as a licensed controllers. Licensed controllers must have "good moral character(good moral character)"And, with education, management or business experience with successful business Employee Leasing Firm or become controller.

In addition to the establishment of labor dispatching companies need a licensing and registration, some states of the labor dispatch company capital is also required. For example, the legal requirements in Florida, Employee Leasing Firm in the initial application for the license, must have not less than50000Tangible accounting net worth ($Tangible accounting net worth); Employee Leasing Firm must also maintain a certain accounting net assets and operating capital (Positive working capital); moreover, Employee Leasing Firm must also be submitted by an independent CPA audited annual financial report to the board of the Employee Leasing Firm. A Employee Leasing Firm shall keep the relevant employee leasing activity accounting and employment records for at least three years. New Hampshire law also requires, the Employee Leasing Firm must to the Labour minister of the state before the opening(the Commissioner of the Department of labor)Submit the application for admission.1996The amended law requires the Employee Leasing Firm to apply for a license must also provide a copy of the independent audit of financial report, show that in the prior to the date of application for the6Months at least10Wan Meijin's net assets. Moreover, the executive department labor may require the Employee Leasing Firm in its designated depository stored enough to guarantee payment of wages or welfare and has a market value of the bonds or securities. Deposit of securities must include the executive not to pay the amount due to Employee Leasing Firm, can sell the corresponding amount of security for the payment of wages, benefits or other claim authorization.2006The Alabama "occupation employer organization registration law" also have similar provisions.

As can be seen from the above, America dispatch company market access for Services Supervision rather strict, which has a regulation of owner and controller of the company's requirements. This might be considered by labor dispatch company is a kind of management and human resources management of the company, employee concentration and the risk is very big, the impact of the employer, and controller of honesty and trustworthiness of the interests of employees and therefore, need to control the labor dispatch company threshold. The labor dispatch company financial requirements, mainly labor outsourcing company is obligated to pay employees based on wages and other welfare cost obligations, these costs and dispatched workers is closely related to the vital interests, if the employer to pay these costs, the dispatched workers to cause serious influence, therefore, it is necessary to make the employer provided some funds, for guarantee these costs.

2Regulation of labor dispatch agreement

Regulation on labor dispatch agreement, share the rights and obligations often involves sending and receiving units between the. Although theoretically dispatch company and receiving unit has decided to freedom of contract, but in order to protect the interests of dispatched workers, the law also has many restrictions on sending and receive unit agreement, these limits are mainly reflects the legislators to send and accept the rights, obligations and responsibilities of unit position.

By Florida law cases, between the Employee Leasing Firm and the client company (contract arrangementContractual arrangement) shall meet the following conditions: (leasing companyA) retained command and control(direction and control)Sent to the location of the customer to send workers rights. But, the client company can retain sufficient control and command and dispatch workers rights, if it is engaged in business are necessary, and if no such rights, the customer will not engage in the business of the client company; also can perform certain statutory obligation of trust (Fiduciary responsibility()B) pay sent workers to pay obligations, regardless of whether the client company to the Employee Leasing Firm (paymentCUndertake to pay the wage tax ()Payroll taxesPerfect duties and taxes), the dispatched workers wages (DKeep hiring, dismissal), punishment and re dispatch(reassign)The rights of workers. But the client company may have to accept or to terminate any dispatched workers to send (AssignmentRight.E) command and control to keep the workplace or dispatched workers affect workplace safety, risk and risk management, including the following functions: (1) safety inspection of the customer equipment and buildings (2) the formulation and implementation of employment and security policy (3) is responsible for sending workers compensation request (Compensation claimsThe requested file (,)Claims filings) and program management. South Carolina law also made similar provisions to obtain permission operators between client company and protocol. New Hampshire1996The amended law also requires, the Employee Leasing Firm and the client company shall have the final contract, Employee Leasing Firm hired, fired and re send the rights of the employees, the Employee Leasing Firm has the right to inspect the client company workplace and requirements for workplace safety improvements.

Visible, the agreement between the employer and the client company organization occupation regulation focuses on the obligation and responsibility to clear the labor dispatch company, namely the minimum obligation and responsibility of occupation employer organizations must undertake the obligation and responsibility, can not be transferred to the client company by contract. To sum up, occupation employer organization usually rights and should bear the obligation and responsibility includes: command, control the rights of employees, pay to send workers wages and the obligation to pay the wage tax, employment, dismissal and dispatched workers rights, ensure employee safety obligations and is responsible for sending workers compensation claims obligation. These obligations embodies between occupation employer organization and dispatched workers employment relations, is the general employer obligations, usually not transferred to client company. Notable is, in order to protect the personal safety of employees, even if the employee was sent to work for a client company, occupation employer organizations still have the obligation to ensure the safety of employees.

Industrial injury insurance (3Workers' compensation insurance)

The industrial injury insurance refers to the damage suffered during the work of labor insurance, medical treatment, usually covered death, disability, rehabilitation and other content, the insurance premium paid by employer. Many state laws to send in the labor law or insurance law regulation to pay industrial injury insurance costs.

From the state law, most states require labor dispatch company must pay the employees work-related injury insurance premiums. For example, according to the Florida2003The provisions of the revised law, obtained permission from the Employee Leasing Firm sent workers to employers, the Employee Leasing Firm has the obligation to provide industrial injury insurance project(workers' compensation coverage). And, unless the Committee Employee Leasing Firm Employee Leasing Firm to business and occupation supervision department submit all dispatched workers industrial injury insurance certificate, Employee Leasing Firm cannot obtain the initial or subsequent licensing. According to the1996Revised New Hampshire law, Employee Leasing Firm should be regarded as the dispatched employee employer, and abide by the following provisions: Employee Leasing Firm to the Labour minister of the state written confirmation is sent workers to employers; Employee Leasing Firm provides sufficient evidence to prove the dispatched workers enjoy the work injury insurance. Some states allow Employee Leasing Firm and client company choice determined by one party to pay industrial injury insurance costs. For example, the South Carolina law allows the Employee Leasing Firm in the contract with the client company, prescribed by the occupation employer organization or client company or both parties bear the responsibility of industrial injury insurance. Some states, such as New Mexico law stipulates dispatch company and client company bear unlimited joint and several liability of work-related injury insurance premiums of dispatched employees. Individual states, such as Utah burden of work-related injury insurance premiums shall be prescribed by the client company.

Therefore, most state laws require the labor dispatch company must pay to send workers industrial injury insurance costs, which is one of the main embodiment of labor dispatching companies as sent to employers, but also an important guarantee for the protection of the interests of workers. Of course, the dispatched workers were sent to the client company, the client company to command and control the dispatched workers to a certain extent, the workers under the control of the risk in the client company, the client company shall bear the cost of industrial injury insurance or not.

4Unemployment insurance (Unemployment insurance payments)

Important legal problems of unemployment insurance payments by labor dispatch company or client company is paid labor dispatch. Many state law has made provisions. Most state law provisions, the unemployment insurance premiums paid by the Employee Leasing Firm. For example, laws of Florida, Employee Leasing Firm is sent workers to employers, the Employee Leasing Firm has the obligation to pay unemployment taxes in time. The Maine law, in the dispatch agreement, the Employee Leasing Firm has the obligation to pay unemployment related costs. The law of the state of New Hampshire, legal obligation of Employee Leasing Firm is obligated to pay wages and other employee benefits and state unemployment insurance costs, regardless of whether the client company to the Employee Leasing Firm to pay the wages, benefits or costs. Moreover, when the Employee Leasing Firm opened more than two years, client company should be jointly and severally liable to the unemployment insurance payment and Employee Leasing Firm. Utah's legal provisions, as the dispatched employee employer Employee Leasing Firm in pay unemployment insurance should be, whether the Employee Leasing Firm or the client company to pay to send workers wages. The law only Minnesota state unemployment insurance premium paid by the client company sent workers, but the premise is the client company50%More employees must be dispatched workers. Some states, such as New Mexico legal provisions if the Employee Leasing Firm not to send workers to pay unemployment insurance fees, the client company shall have the obligation to bear the unemployment insurance costs.

5Exclusive and vicarious liability (Exclusivity and Vicarious Liability)

Can be seen from the above analysis, the Employee Leasing Firm as a dispatched employee employer, must assume the general employers usually assume the responsibility, but the Employee Leasing Firm to send employee's obligations is not infinite. Many states have a "exclusive and vicarious liability (Exclusivity and Vicarious Liability)"The provisions of the Employee Leasing Firm and client company, not for the other's behavior (Actions() or negligenceOmissionsBe responsible for. For example, the law of the state of New Hampshire, Employee Leasing Firm are not for the acts or omissions of client company (bear vicarious liabilityVicariously liable), client company also not for acts or omissions of the Employee Leasing Firm take vicarious liability. But this provision does not affect the agreement between Employee Leasing Firm and client company (direct contract liabilityDirect contractual liability) and the provisions of the law responsibility or obligation. At the same time, general liability insurance, dispatched workers in client company to implement the auto insurance, employee loyalty insurance (Fidelity bond), performance guarantee(surety bond)And employers liability insurance, should be regarded as an employee of the client company. In the insurance Employee Leasing Firm in carrying out the insurance or guarantee, unless otherwise specified in the contract, the dispatched employee are not considered to be an employee of the Employee Leasing Firm. Provisions of the state of Illinois and New Hampshire, roughly the same. The Maine law have similar provisions. Visible, the liability of Employee Leasing Firm is not nothing is impossible.

6Summary dispatch company and client company shared responsibility

To send workers industrial injury insurance and unemployment insurance payment from the above state law, most states will Employee Leasing Firm as the dispatched workers to employers, the Employee Leasing Firm in addition to pay to send workers salaries, has the obligation to pay industrial injury insurance and unemployment insurance and other employee benefits costs for employees. This also reflected between the Employee Leasing Firm and the dispatched workers basic employment legal relationship, namely the labor dispatch company legal obligations in general the employer shall bear the payment of wages and social insurance premiums. The only individual state laws in order to protect the interests of the dispatched workers, the client company as the second responsible person or the bear joint and several liability. The social insurance premiums by the dispatch of the company undertake the more reasonable, in addition to sending workers and the existence of the employment relationship between the company sent outside, social insurance costs more and more complex, by labor dispatch company responsible, can play of scale labor dispatching companies and professional advantages.

On the other hand, the liability of Employee Leasing Firm is not infinite. Responsible for the Employee Leasing Firm and the client company not each other's behavior, not at each other completely under the control of the command and dispatch workers, which reflects the "who control and command, who is responsible" principle, also shows that the Employee Leasing Firm and client company are two employers are mutually independent, rather than an employer. The rules but a principle is still subject to agreement between Employee Leasing Firm and client company constraints and legal obligations and responsibility limit. Therefore, "exclusive and vicarious liability" principle can be prevented by the client company sent workers to sue, but this is not absolute, in some cases, the court will make the opposite decision.

Notable is, in addition to the industrial injury insurance and unemployment insurance relationship, basically states method dispatch workers as employees of client company, especially in the client company to provide insurance; even in the Employee Leasing Firm to provide insurance, nor will send workers as employees of Employee Leasing Firm. This illustrates that there are employment relationship between client company and employees, in the insurance law relationship, between the client company and the dispatched workers must be made to the employer and employee obligations. General liability insurance, car insurance, employee loyalty, performance guarantee insurance and employers liability insurance reflects send specific employment relationship between the company and the client company, the relationship has gone beyond the general employment relationship between the Employee Leasing Firm and the dispatched workers, therefore, to send workers to these legal relationships as an employee of the client company, not only conducive to the employer to fulfill its obligations, but also conducive to employees fulfill their obligations, such as loyalty, performing obligations, it is necessary to ensure the interests of the employer.

(two) federal law and labor dispatch

In addition to the provisions of the state statute, by precedent interpretation, the court resolved the how many federal laws apply to the labor dispatch occasions, especially the shared dispatch responsibility between company and client company. The court case show that many, in the application of federal law, common employer client company in compliance with certain conditions will and dispatch company dispatched workers (Joint employer), client company must also assume the company sent under federal law should bear the responsibility of employer. The court explained mainly relates to the client company in the "National Labor Relations Act (National Labor Relations Act, NLRA"),1964In seventh chapter ("bill of rights"Title of the Civil Rights Act of 1964 VII) and other relating to the employment of the equal protection of the law, "the Fair Labor Standards Act (Fair Labor Standards Act, FLSA) "," occupation safety and Health Act (Occupational Safety and Health Act, OSHA) "and" the family and Medical Leave Act (Family and Medical Leave Act"The problem of responsibility). In the application of these laws, the court is considering whether client company should be recognized and dispatch company constitute a common employer, but the most important factor in determining whether client company belongs to the common employer is whether client company"Have the right to control (Right to control)"Dispatched workers.

1"The National Labor Relations Act" under the common responsibility of employer

The National Labor Relations Board (National Labor Relations Board,NLRBDetermination of the common employer) mainly by the following criteria: when two or more than two employers of employees with the same implementation"The important control (Significant control)", and thus indicate the employer"Sharing or co decision"Terms and conditions (orTerms or conditions of employment), more than two employers will constitute a common employer. Therefore, on the basis of "the National Labor Relations Act (NLRA"), to identify common employer is the main issue of fact, the court examines whether client company"The dispatched workers to the implementation of the"Important control"Factors considered include client company, and participate in the labor dispatch company sent workers to hire and fire, promotion and demotion, salary and working conditions, the daily supervision and punishment and command and dispatch workers degree. In recent years,NLRBAnd the court will common employer theory applied to the labor dispatch occasions. The court case show, to send workers"Supervise daily, effective(day-to-day, meaningful supervision)"To judge whether the main factors of the company sent "National Labor Relations Act" to the employer. If the National Labor Relations Board (NLRBIdentification of common employer status) set up client company, client company may be unfair labor practice to dispatch company engaged in (aloneUnfair labor practicesTo assume responsibility, if ()1The client company)"Knows or should know that other employers due to illegal reason the implementation of the behavior of dispatched employees"And (2) without protest or not according to the contract implementation can implement the right to be resisted and default (AcquiescedThe wrongful act). As the client company is likely to be identified as "National Labor Relations Act" under the common employer, therefore, the client company can and labor dispatch companies agreed not to hire client company, promotion, dismissal, punishment right to send workers and dispatched workers salaries, determined by the dispatch company employee benefits and other conditions of employment, to reduce the court identified as common employer.

2The law of anti discrimination in employment in the common responsibility of employer

Because the federal anti discrimination in employment and the protection of the equality rights of employment law provides remedies for employees, therefore, in the court case, the court may also use the common employer theory, the victim can get relief from the more employee employer.

In anti discrimination in employment litigation, the court found a common employer identification is the use of standard and "National Labor Relations Act" case roughly. Factors including the court investigation: (1) supervision of the dispatched workers (daily activities2) the hiring and firing of dispatched workers (power3Formulate work rules), decided to hire working conditions and dispatch (Work assignmentAnd the power to issue instructions). In anti discrimination in employment litigation, courts concern is whether a mechanism is the core issue of fact and judgment of the employer, the employer's identity is whether the agency"Control of employees or hire the terms, conditions or rights (Terms, conditions, or privileges)". That the court in the precedent,: if an organization "the implementation of the important control", the agency will likely become the defendant, even if the agency is not direct employer (Immediate employer). In theMagnuson v. Peak Technical ServicesIn the case of. The plaintiff by the client company--Volkswagen (VolkswagenA dealer ()DealershipSexual harassment manager), the court allowed the plaintiff sued not only sexual harassment, but also allowing the plaintiff to sue client companyVolkswagen, VolkswagenDealers and dispatch companyPeak. The court thoughtPeakCompany as a dispatch company is the plaintiff's employer, because, the plaintiff fromPeakThe company receives wages and employee benefits, and the two sides signed a written employment agreement. The court also held that, although the plaintiff andVolkswagenNo contract of employment relationship, butVolkswagenExert a significant control on the terms of employment, conditions,VolkswagenThe company also should be recognized as the plaintiff's employer. The court also held that, if the dealer on the employment terms and conditions of the implementation of the control, the dealer can become the defendant, and if the implementation of sexual harassment manager has the power of supervision, which I may take responsibility. Therefore, once established common employer status, client company must also bear the illegal acts of illegal behavior of Employee Leasing Firm and its. For example, the company sent if not abide by the "bill of rights" chapter seventh requirements for record keeping or discriminate against the dispatched employee, the client company will also have a responsibility to these behavior, even if the client company does not agree or do not know it. In the anti discrimination cases, courts tend to support the plaintiff asked to participate in the supervision of activities ("Supervisory activities)"Any party should assume the responsibility to discrimination, not just those of discrimination with"In fact, control or power (Actual control and authority)"The mechanism.

3. "for the Fair Labor Standards Act"

Basis1938Years "the Fair Labor Standards Act", the use of temporary employees of client company will usually and dispatch company shall bear joint and several liability, to ensure that the dispatched employees can get wages according to the law. Although theoretically dispatched workers to be employed by the company sent, but in the court case, the court usually client company make the obligations and responsibilities of the dispatched employee to undertake the law. In theCastillo v. GivensIn the case of farmer workers, that is by the agricultural labor dispatch company has to offer, the court denied the claims, the farmer still decision responsibility about the minimum wage and record keeping. USA labor department's position is: use the dispatched employee of client company should provide the dispatched employee and dispatch company assume responsibility in ensuring that the minimum wage and overtime. In other words, if the company fails to perform the obligation to send, send the employees of the company will bear the responsibility.

4"Application of occupation health and Safety Act"

Basis1970Year "occupation health and Safety Act", occupation safety and Health Administration (Occupational Safety and Health Administration, OSHA) is responsible for investigating violations. IfOSHAFind that the establishment of dispatch company client company and common employer status in the survey,OSHAThe sending institution or client company or two subpoenas to labor. Even if unable to identify common employer identification,OSHAThere are many employers in the workplace, can also issued a subpoena to one or more of the employer, the employer that is manufactured or controlOSHAIdentified risk survey(hazards). According to the "occupation health and Safety Act", the manufacture or control the dangerous side will take in danger of employee's responsibility, therefore, client company in the use of dispatched employees, in the danger of dispatched employees do not assume responsibility is almost impossible. Therefore, client company in the use of dispatched employees, must be safety and health on workplace attention.

5. "for the family and Medical Leave Act"

In accordance with the "family and Medical Leave Act", the employer has the obligation to provide employees under any of the following circumstances12Unpaid leave week (1The child's birth or adoption) (2) employees or their close relatives (parents, spouse and children) with serious health conditions. If there exists a common employer, dispatched employees also regarded as dispatch company and client company on either side of the employees. Therefore, if the client company was identified as the dispatched employee"Basic employers(primary employer)", client company has the obligation to provide compulsory holidays for the dispatched employee, if the dispatch organization is the basic of employers, the dispatch organization must provide holiday. But considering what is basic the employer, usually consider which party has the right to hire, fire, dispatch (Assign), placement of employees and which party pays the employee's wages and benefits.

6Summary of poetic couplet state law

From the above analysis we can see that, although the state law that labor dispatch company and employees have a direct employment relationship, usually require a labor dispatch companies pay to send workers wages and obligations of industrial injury insurance and unemployment insurance costs, but client company usually does not send the wages of the workers and the industrial injury insurance and unemployment insurance shall bear joint and several liability. In contrast, in the application of the relevant employer federal legal obligations, the client company in compliance with certain conditions may company was found and sent a common employer, to bear alone or jointly and dispatch company for unfair labor behavior, discrimination in employment, the minimum wage and overtime cost, safety and health, vacation and other employers duties and responsibilities. In judging whether the client company and the company sent a common employer, courts usually use standard is whether client company employees to the implementation of the "important", and in terms of employment, conditions of hire content decisions. Both state and federal law on client company responsible attitude is quite reasonable. The payment of wages and social insurance and welfare expenses undertaking by the dispatch of the company, to ensure the basic rights of employees and employers, play the advantages of scale and professional advantages, the company does not directly use the dispatched employees, employees are often in a client company control, therefore, the employer should do in the workplace obligations, let client company and the company sent joint responsibility for the client company to do voluntary employee protection, avoid the client company through the form of labor dispatch to evade responsibility, which is conducive to the protection of the interests of the dispatched employees. Moreover, due to the payment of wages and social insurance costs employers obligations are mainly borne by the dispatch company, help to reduce the risk of client company, therefore, sharing the responsibility form is not the positive effect on client company use of labor dispatch.