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Temp Agencies

The main focus is on the employment relationship between the temporary worker and the temp agency.  How the assignment ended with the client is usually irrelevant, unless such is needed to prove the claimant quit. The one exception is when the underlying conduct caused the temp to be fired from both the agency and the client.

Note: Most temp cases are heard by telephone.  Thus, it’s important that all documents be sent to the hearing officer well in advance.  Also be sure to send the claimant copies and have copies with you.  Often you'll find the hearing officer never got them and you’ll be asked to resend them while the hearing is in progress.

Most Common Issues

Failure to Call In For Reassignment Partial Claims
Refusing An Assignment Other Availability Issues
Separation (Quit or Fired from the Temp Agency) Subpoenas

See Also Ending the Employment

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Failure to Call In For Reassignment (See also Separation For Not Calling In)
The Law
Evidence
NO NO’s
Questions The Hearing Officer May Ask You
Obstacles To Winning
Closing Summary Arguments
 

Temp Agencies
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The Law On Keeping in Contact (See Suggested Call In Policy)

Synopsis
The employer must explain in writing that unemployment benefits can be denied if the temp fails to stay in touch with the temp agency.  Further, the temp must follow all the employer's reasonable communication requirements. If the temp was advised of such in writing and never calls back, this will be deemed a voluntary quit. At this point, the temp is disqualified until he earns ten times his weekly benefit amount and becomes unemployed again through no fault of his own.

Note that the 10 times disqualification usually won't apply in the following situations:

1. When the temp called in after his assignment but only did so sporadically; or 
2. When the temp never called in but was not told in writing that such could jeopardize his unemployment benefits.
3. When the temp agency is still willing to use the temp and continues calling the temp for more assignments-regardles of whether the temp accepts   them.

 A sporadic caller will be deemed disqualified only for those weeks where he failed to meet the employer's call in requirements. The same holds for the temp who was never warned in writing. (The claimant will be disqualified under 34-8-195(a)(3)(A) where to receive benefits, the claimant must be able, available and in good faith actively seeking full time work).

For how to optimize the ten times disqualification provision, See Suggested Call In Policy and Separation For Not Calling In

OCGA Section 34-8-195(c) provides, in part, that an employee of a temporary help
contracting firm will be presumed to have voluntarily left employment without good cause
if the employee does not contact the temporary help contracting firm for reassignment
upon completion of an assignment if the employee has been advised in writing of the
obligation to contact the firm upon completion of assignments and has been advised
in writing that unemployment benefits may be denied for failure to do so

Failure To Follow The Employer’s  Reasonable Rules On contacting Temp Agency

Rule 300-2-9-.08(1) of the Rules of the Georgia Department of
Labor provides that an individual who is working on a temporary
assignment basis shall not be denied benefits solely as a consequence
of such employment.  Subsection (3) further provides that
the claimant must have complied with all of the employer's reasonable
rules with respect to work assignment
, such as providing the employer
a current address and telephone number by which to contact
the claimant concerning possible work assignments; and is otherwise
meeting all reasonable communication requirements of the employer
to stay  in touch with the employer.
                                                    

Temp Agencies
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Evidence

  1. Signed acknowledgement form showing temp received copy of call in procedures.
  2. Copies of other rules or procedures relevant to the case.
  3. Print Out of Call In Log showing when the claimant did and did not call. This should be sent to the hearing officer well before the hearing. You'll want the hearing officer to have tangible evidence to support that the claimant did not call or was warned, etc.  If the hearing officer never received such, request to fax the document during the hearing.
  4. Witnesses who spoke to the claimant. (May need to conference in other associates).
  5. Printout showing the claimant has been removed from the roster of temps and will no longer be considered for assignments. See Separation from the Employment

See Subpoenas 
Temp Agencies
 

Copies of other rules or procedures relevant to the case.
Your rules on availability should state:

bullet

How often the temp should call in available. (Once a week, twice a week, etc.)

bullet

Who to Contact (Limit it to two people or a phone # where only two people answer)

bullet

"Failure to follow these procedures may jeopardize your right to collect unemployment." See Suggested Call In Policy

bullet

"The temp agency is your employer not the client. You must still call us in even if  you are fired by the client."

bullet

If you are not looking for work, you must call us and put your availability status on hold until you are once again
ready to work. If you fail to do so, then after two/three/four weeks, you will be deemed to have voluntarily quit and
may forfeit your right to collect unemployment benefits. Examples of when you need to freeze your account include
when for a period of x days or more, you are on vacation, ill, working for another employer or temp agency, or are
otherwise unavailable.

Sample Rule

Employees terminated from an assignment must call/report to ____x______ within 2 business days for possible
reassignment. Failure to do so may jeopardize your right to collect unemployment benefits. After an assignment ends, the employee must report once a week to be considered available. Failure to report as required may jeopardize your right to collect unemployment benefits. These rules cannot be changed or modified without written approval from a senior manager.

See Evidence
See
Subpoenas 

Temp Agencies
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NO NO’s

Never tell a temp “we’ll call you when we have work for you.”
This will entirely negate your call in procedures and the claimant will win the case. Instead, always have them call in accordance with your standard call in procedures.

Never

Never Allow The Temp to Talk to More than Two Designated People When They Call In Available.
 

Temp Agencies
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Questions The Hearing Officer May Ask You
You must be ready to answer these questions if asked, and should volunteer this information if not asked.
 

Call In Questions

bulletHow many assignments did the claimant have with your agency? (may indicate whether claimant previously familiar with call in procedures)
bulletWhat records do you keep to show someone has called in for more work?
bulletDid the claimant call in as required?
bulletWas there work available for the claimant? (i.e. unemployed due to lack of work or for not calling in?)
bulletWhat dates did the claimant call in?
bulletDid he have any contact with you or the agency after this time?
bulletWho took the call(s)?
bulletHow many people in the office take these calls?
bulletAre notations of the call routinely made on or near the time of the call? (Reliability issue)
bulletIf the claimant called another location would such be noted in your computer records?  (Reliability issue)

 Rule and Policy Questions

bulletWhat are your rules on contacting the employer for more work?
bulletDid the claimant know of your call in rules?
bulletHow was the claimant made aware of these rules? (signed a handbook, went to orientation, etc).
bulletAre their any penalties in your rules for failing to contact the employer?
bullet Was the claimant ever informed in writing that failure to call in after an assignment could jeopardize unemployment benefits?

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Obstacles
Temp Says He Was Told Not To Follow Call In Procedures
Temp Says He Was Fired From the Employer And The Assignment

 

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Temp Says He Was Told Not To Follow Call In Procedures

Sometimes at the hearing, the temp says "person X told me I don't have to call in and that I'll get a call when they have something for me."  Unless person X is available to dispute this, the employer may lose the case. 

That's Why You Should Never Allow The Temp to Talk to More than Two Designated People When They Call In Available. 

With only two people taking these calls, you can control better what is said to the temp about your call in procedures. The more people who handle these calls, the greater the chance for miscommunication or mishap..

Second, with the high employee turnover usually found in temp agencies, you want to ensure that the employee who spoke to the temp is still available to testify.  What you don't want is the temp to claim they spoke to someone who is no longer with the company.  In that case, it's the temp's sworn testimony against the hearsay testimony of the employer and the temp will usually win the case.

To avoid this, put in writing that the temp will be deemed unavailable unless they call or leave a voicemail message with person X or Person Y.   Then if they claim at the hearing that they spoke to someone else, you can demonstrate that they did not follow the agencies reasonable rules on keeping in touch with the employer.  This also allows you to limit the number of people you'll need to have at the hearing.  Temp agencies who must call in a bunch of  witnesses are slated for trouble. After all, someone's still got to be there to run the agency while the hearing is in progress!!!!! 

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Temp Says He Was Fired From the Employer And Not Just The Assignment

This often happens when the temp worked on just one long assignment and never had to call in available before.

Here's a real life example: 

Temp works at agency division that caters only to client A and their affiliates.  After 18 months of working for just one client, he's fired for tardiness and told by the agency "we can't use you at client A or their affiliates"  The temp then files for unemployment, loses the case and files an appeal. 

At the appeal's hearing he explains that he never followed the temp agency's availability rules because he was fired.  The agency's "talent manager" denies the agency fired him and says he was fired only by the client.

If the talent manager is correct, then the temp should have called in available each week  However, the temp says "this division was the only one I ever registered with and they cater to just one client.  When they told me they could no longer put me on assignment I knew I was fired." At this point, the employer has nothing in writing to show the temp would be considered for other assignments. In fact , they vehemently maintain "but we told him if he wanted work he could always call our other divisions."  The temp, of course, denies ever hearing such.  And it's now just a swearing match of "he said" "she said."  The hearing officer finds the temp was fired and had no duty to call in.   Temp wins. (The temp agency almost never wins in a discharge unless they dare bring in the client.) 

Solution
If you still intend to use the temp for other assignments, advise him in writing that his file is being transferred to another division and he must call them every week he's available. Also add in your letter that "Failure to call in each week may jeopardize your right to collect unemployment benefits."
If he failed to call in after a certain time period. Send him a letter stating your rule and informing him failure call in will result in separation. If the temp does not call in by the deadline, send him a separation notice, note the separation in your computer database and do not contact him for more work. If he wants to work, simply have him come to the office in person and re-register.

Temp Agencies

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Refusing an Assignment
The Law
Evidence
NO NO’s
Obstacles To Winning
Closing Summary Arguments

Temp Agencies

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The Law On Refusing An Assignment

Synopsis
Simply put, the temp may be disqualified for any week where he refuses a job within his pay range, travel distance, work times and skill set. 

OCGA Section 34-8-195(c) provides that an individual shall not be
deemed to be unemployed in any week such individual refuses an 
intermittent or temporary assignment without good cause when the   
assignment offered is comparable to previous work or assignments   
performed by the individual or meets the conditions of employment  
previously agreed to
between the individual and the employer.     

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Evidence
To prove the temp refused a suitable assignment, you need to show that the assignment was comparable to the temp's previous assignments or that he had previously agreed to work under these conditions.

Refer back to the temp's original application or to other jobs previously accepted. The application should always list the lowest pay the claimant is willing to accept. It should also list any restrictions on the times or dates he can work, the tasks he can't do and the maximum distance to travel, etc. Always write down ask exactly why the job was rejected. 

See Subpoenas 


Temp Agencies

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NO NO’s


Obstacles To Winning
Many employer's fail to keep accurate records of what the refused job paid, what the claimant agreed to or why the job was turned down.

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Separation (From the Temp Agency)
Closing Summary Arguments

For Separation Due To Attendance or misconduct,
see Discharge.
For Quits, see Quits

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For Separation Due To Not Calling In
The temp is not separated if you are still calling him for assignments. To take advantage of  the law on failing to call in you must deactivate the temp. You should also send a letter to the temp stating that after x date he is deemed to have voluntarily quit. "If you wish to be considered for more assignments you must report to the office in person and sign a form indicating you are again willing to work. You cannot be considered for more work until you report in person and complete the paperwork.

See Suggested Call In Policy

The Voluntary Quit
Hearing officers are very skeptical of temp agencies. It is well known that to remain competitive, they must fight every claim tooth and nail. Therefore it is vital to establish your credibility and not appear untrustworthy.

The Most Common Employer defense is that the employee
"VOLUNTARILY QUIT BY NOT CALLING IN AVAILABLE"

Temp agencies often lose because they try to have it both ways.  A claimant that "quits" cannot be considered for future assignments.  And if the claimant is called for future assignments, then obviously he never quit.  This means the employer must make a choice. Either the temp is allowed to remain eligible for assignments, or he is separated from the company entirely.

For economic reasons, it is good that some employees remain on the roster. For example, employees with highly sought after computer skills, should never be removed even if they fail to meet the employer's rules and policies. However, for the most part, those who are not available for work should be separated and no longer considered for other assignments. Once removed, it is up to the temp to contact the employer and take the necessary steps to re-register. Otherwise, the temp's eligibility will be determined on a week to week basis and the quit disqualification will not apply.  It is only when the claimant is truly separated from the company that he'll have to earn 10 times his weekly benefit to re-qualify for unemployment.

EMPLOYERS  SHOULD NEVER USE THE WORD QUIT UNLESS:

The claimant says, writes or clearly demonstrates he is leaving the employment relationship;
OR
You have written rules stating that "not following all communication requirements will constitute a voluntarily quit and may jeopardize unemployment benefits" AND
you have documented that the temp has breached your rules and has no longer been considered for assignments.

NEVER allow the claimant to call in available after he has been separated from the employment. Communicate in writing that the temp has quit and now must fill out another application or re-register. (It's up to you what it means to re-register. It could be something as simple as signing a piece of paper or as lengthy as redoing the application.. It should always be more than simply calling in again available).

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Partial Benefits: When The Claimant Works Part Time & Earns Below His Benefit Amount

Synopsis
The temp may collect partial employment if the earned wages are below his weekly benefit amount and he's working less than full time.  However, the temp must be reasonably available for work and be working less than full time through no fault of his own.  For example, suppose a temp has a weekly benefit amount of $200 and earned $140 a week in part time work.  If  all other requirements were met, the temp could still collect $60 a week in benefits ($200-$140).

The Law

OCGA Section 34-8-195 provides that an individual shall be eligible
for any week in which the individual has been unemployed or
employed less than full time and has reported any deductible earnings.

Section 300-2-1-.01(7)(b) of the Rules of the Georgia Department
of Labor defines "part-total unemployment" as a week in which an
otherwise qualified individual performs services and earns wages not
exceeding the weekly benefit amount of his claim plus fifty ($50.00).

The general construction of this law holds that the claimant must be
working less than full time due to lack of work only, and it must be shown
that the claimant has made himself/herself reasonably available to the employer
for work.
      

Temp Agencies

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Other Availability Issues
The Law (Being Reasonably Available)
Evidence
NO NO’s
Obstacles To Winning
Closing Summary Arguments

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The Law

Synopsis
The temp cannot be out of work based on a failure to be reasonably available.  Being unreasonably unavailable can take the form of refusing assignments, not calling in or not getting retested when told such is necessary to secure other assignments.

OCGA Section 34-8-195 provides that an individual shall be eligible
for any week in which the individual has been unemployed or
employed less than full time and has reported any deductible earnings.

Section 300-2-1-.01(7)(b) of the Rules of the Georgia Department
of Labor defines "part-total unemployment" as a week in which an
otherwise qualified individual performs services and earns wages not
exceeding the weekly benefit amount of his claim plus fifty ($50.00).

The general construction of this law holds that the claimant must be
working less than full time due to lack of work only, and it must be shown
that the claimant has made himself/herself reasonably available to the employer
for work.
     

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Evidence
Document whenever the temp does something that unreasonably restricts the work he can get.  For example:  If the temp is told he needs to get retested, document the times he was contacted and whether or not he responded.  The same goes for job refusals or requests for only odd hours, i.e. part time work or third shift jobs, etc. 

See Subpoenas


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Obstacles To Winning

Document. Document. Document. The more you document, the more likely you'll win.

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Closing Summary Arguments  (Samples)
Separation For Not Calling In As Required
Separation For Rule Violation (Discharge)
For Denial of Benefits Based On Failure To Call In Each Week (No Separation)
For Job Refusals

Temp Agencies

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Separation For Not Calling In as Required
In the instant case, the claimant should be disqualified because he quit/was discharged for failing to call in as required. The claimant was advised in writing that he had x day(s) to contact the temp agency upon completion of assignment and that unemployment benefits may be denied for his failure to do so. However, although warned in writing of such, the claimant disregarded these rules and failed to call in within the time required. At this point his relationship with the temp agency was terminated. Thus, the claimant is unemployed not due to lack of work, but simply because he failed to follow the rules and instructions of his employer. Therefore, a disqualification is required.

Temp Agencies

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Separation For Rule Violation (Discharge)
In the instant case, the claimant was at fault for violating a known policy. The claimant was warned about (state the misconduct or rule violation) and told such could cause his job to be in danger. In spite of being warned, the claimant failed to follow the rule and was terminated. The claimant had the ability to comply with this rule and was at fault for not doing so. Therefore, we respectfully request that benefits be denied.

Temp Agencies

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For Denial of Benefits Based On Failure To Call In Each Week (No Separation)
In the instant case, the claimant was required to call in once/twice a week. These rules were made specifically so the claimant could maximize his chance to obtain work. However, the claimant never followed these rules and at best called in sporadically. The evidence shows the claimant clearly knew of these requirements:

(because he was told verbally and in writing) and/or
(had followed these rules on prior occasions when between assignments).

In this case, the hearing officer must simply decide who is the more credible party.
Is it the claimant, who cannot remember who he spoke to or when he made the call,
Or the employer, who has detailed business records which show the dates of each call and who he spoke to.
Such records are reliable because they are routinely maintained in the ordinary course of our business and logged within hours of when the call was made. We submit that the claimant called in on (list dates). However, he failed to call in once/twice a week as required. Thus, the claimant is unemployed not due to lack of work, but simply because he failed to follow the rules and instructions of his employer. Therefore, a disqualification is required.

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For Job Refusals
In the instant case the refused a job within his pay range, travel distance, work times and skill set.  The claimant claimant had accepted similar jobs in the past and had no legal excuse for rejecting the assignment. Thus, the claimant is unemployed not due to lack of work, but simply because he failed to accept work that was available.. Therefore, a disqualification is required.

Temp Agencies

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