Over the last quarter century, a profound restructuring of U.S. labor markets has occurred. Long-term job tenure, internal labor markets, and employer-sponsored benefits have waned under the pressures of neoliberal globalization. The trend is toward increasingly precarious, shorter-term, serial employment relationships that offer significantly lower wages, reduced job-related benefits, and formidable obstacles to the exercise of employment rights. This fundamental shift has moved so-called “non-standard” employment arrangements, once viewed as marginal, into the core economy. As a result, a remarkable array of profit-driven labor market intermediaries (LMIs) are now embedded in mainstream labor markets. Temporary help and staffing agencies, payrolling and employee leasing firms, and other for-profit, labor-only contractors are now integral to “flexible” staffing practices and just-in-time production methods being used in industries as varied as software engineering, building construction, manufacturing, legal and accounting services, and healthcare. Legal scholars, however, have given little attention to the relationship between the unique mode of exploitation experienced by workers in triangular employment relationships and the legal status of for-profit LMIs under U.S. workplace law. With few exceptions, federal and state work laws classify and treat for-profit LMIs as “employers,” a dubious and, at best, incomplete assignation that has left both the market-mediating and job-brokering functions of profit-driven LMIs unregulated. The Authors argue that regulation of profit-driven job brokering – particularly the so-called mark-up, i.e. the difference between the wages paid to a temp worker and the contract price a user firm pays the temp agency for “use” of a temp – is essential to rectify the second-class status of the ever-growing workforce being deployed by commercial LMIs. Such regulation requires construction of a distinct legal status for profit-driven LMIs that encapsulates an LMI’s dual role in triangular employment relationships, i.e. as the employer of record for temporary workers and its fundamental institutional role as a job broker that negotiates the terms under which labor is deployed to the employer’s locus of production or service provision. The Authors propose core elements of a regulatory scheme that can protect the rights and interests of agency workers deployed by profit-driven LMIs in order to create a legal climate that can redress the myriad social problems arising from their hegemony in contemporary high-mobility labor markets.
13 Empl. Rts. & Employ. Pol'y J. 285 (2009).