Flexible employment: Positive work strategies for the 21st century

Journal of Labor Research

Volumn 17, Issue 4, 1996, Pages 555-566

  Lenz, Edward A ^a  

^a Natl Assoc Temporary Staffing S   (United States)

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EID: 0039926471     PISSN: 01953613     EISSN: None     Source Type: Journal    
DOI: 10.1007/bf02685799     Document Type: Article

References (41)

1. Most lawyers caution against using the word "permanent" when referring to employment relationships to avoid any implication of a legal promise of employment. "Permanent" is used herein simply to distinguish jobs that are expected (as opposed to legally guaranteed) to be ongoing from ones where such expectation does not exist (e.g., temporary jobs) - and to avoid confusion with other terms such as "full-time" and "part-time" which generally refer to the hours worked in a week.
2. See, e.g., "Conference on the Growing Contingent Workforce: Flexibility at the Price of Fairness?: Conference before the Subcomm. on Labor of the Senate Comm. on Human Resources", 103d Cong., 2d Sess. 1 (1994) [statement of former Senator Howard Metzenbaum (D-OH)].
3. See Bureau of Labor Statistics, U.S. Department of Labor, Report 900, Contingent and Alternative Employment Arrangements (August 1995) [hereinafter Contingent Employment Arrangements]. See, also Lenz, "Contingent" Work: Dispelling The Myths," 52 Washington and Lee Law Review 755 (1995). A fuller discussion of the Department of Labor's analysis of the contingent work force is contained in its 1995 Report on the American Workforce in a chapter entitled "Employment Relationships in a Changing Economy."
4. See Bureau of Labor Statistics, U.S. Department of Labor, Report 900, Contingent and Alternative Employment Arrangements (August 1995) [hereinafter Contingent Employment Arrangements]. See, also Lenz, "Contingent" Work: Dispelling The Myths," 52 Washington and Lee Law Review 755 (1995). A fuller discussion of the Department of Labor's analysis of the contingent work force is contained in its 1995 Report on the American Workforce in a chapter entitled "Employment Relationships in a Changing Economy."
5. See Bureau of Labor Statistics, U.S. Department of Labor, Report 900, Contingent and Alternative Employment Arrangements (August 1995) [hereinafter Contingent Employment Arrangements]. See, also Lenz, "Contingent" Work: Dispelling The Myths," 52 Washington and Lee Law Review 755 (1995). A fuller discussion of the Department of Labor's analysis of the contingent work force is contained in its 1995 Report on the American Workforce in a chapter entitled "Employment Relationships in a Changing Economy."
6. See, e.g., William Bridges, "The End of the Job," Fortune, September 19, 1994, p. 62.
7. See, e.g., Albert Crenshaw, "The Myth of the 'Mobile Worker'," Washington Post, December 28, 1994; "Whistling While They Work," Economist, January 28, 1995, p. 25. And see the Department of Labor's 1995 Report on the American Workforce, in which the authors conclude on p. 11 that "data on job service, retention rates, job turnover, and part-years work . . . suggest that there has been little change in overall job stability."
8. See, e.g., Albert Crenshaw, "The Myth of the 'Mobile Worker'," Washington Post, December 28, 1994; "Whistling While They Work," Economist, January 28, 1995, p. 25. And see the Department of Labor's 1995 Report on the American Workforce, in which the authors conclude on p. 11 that "data on job service, retention rates, job turnover, and part-years work . . . suggest that there has been little change in overall job stability."
9. See, e.g., Albert Crenshaw, "The Myth of the 'Mobile Worker'," Washington Post, December 28, 1994; "Whistling While They Work," Economist, January 28, 1995, p. 25. And see the Department of Labor's 1995 Report on the American Workforce, in which the authors conclude on p. 11 that "data on job service, retention rates, job turnover, and part-years work . . . suggest that there has been little change in overall job stability."
10. Conference Board, HR Executive Review, Contingent Employment (1995).
11. Ibid., p. 6.
12. Report on the American Work Force, p. 3.
13. See Contingent Employment Arrangements, Table 11.
14. James Aley, "The Temp Biz Boom: Why It's Good," Fortune, October 16, 1995, p. 53.
15. September, 1995 survey conducted for the National Association of Temporary and Staffing Services (NATSS) by Lauer, Lalley & Victoria, Inc., a Washington, D.C. economic, market, and public opinion research firm. Of all former temporary employees surveyed, fully 72 percent are now working in permanent jobs.
16. Statement of Rogercarole Rogers, Director, Employment Development, McDonald's Corporation on behalf of Advocates for Flexible Employment before the United States Senate Committee on Labor and Human Resources, Subcommittee on Labor on "The Growing Contingent Workforce: Flexibility at The Price of Fairness?" (Feb. 8, 1994). See also Jonathan Kaufman, "A Break Today - A McDonald's Owner Becomes a Role Model For Black Teenagers," Wall Street Journal, August 23, 1995, p. A1.
17. Statement of Rogercarole Rogers, Director, Employment Development, McDonald's Corporation on behalf of Advocates for Flexible Employment before the United States Senate Committee on Labor and Human Resources, Subcommittee on Labor on "The Growing Contingent Workforce: Flexibility at The Price of Fairness?" (Feb. 8, 1994). See also Jonathan Kaufman, "A Break Today - A McDonald's Owner Becomes a Role Model For Black Teenagers," Wall Street Journal, August 23, 1995, p. A1.
18. Steven Pearlstein, "Business and the Temp Temptation: A Permanent Solution," Washington Post, Oct. 20, 1993.
19. In an informal survey, Lauer, Lalley asked selected NATSS members to estimate their skills training expenditures for 1993. The training costs of the forty-seven firms which responded, representing about 10 percent of the industry payroll, were approximately $45 million. Hence, total industry training costs can be estimated in the range of $450 million annually.
20. U.S. Department of Labor/U.S. Department of Commerce, Commission on the Future of Worker-Management Relations, Report and Recommendations (December 1994), p. 35. See also Potter and Youngman, Keeping America Competitive (1995), pp. 265-310.
21. U.S. Department of Labor/U.S. Department of Commerce, Commission on the Future of Worker-Management Relations, Report and Recommendations (December 1994), p. 35. See also Potter and Youngman, Keeping America Competitive (1995), pp. 265-310.
22. Peter Applebome, "Employers Wary of School System," New York Times, February 20, 1995.
23. Robert L. Rose, "A Foot in the Door," Wall Street Journal, February 27, 1995.
24. See, e.g., Paul Klebnikov, "Focus, Focus, Focus," Forbes, September 11, 1995, p. 42.
25. See Bureau of Labor Statistics, U.S. Department of Labor, Bulletin 2452, The American Work Force: 1992-2005, 1994, p. 1.
26. The increase in the proportion of male temporary workers was recently confirmed in a study conducted by economists at the Federal Reserve Bank of Chicago. See Segal and Sullivan, "The Temporary Labor Force," Economic Perspectives 19 (March/April), pp. 2-19 (hereinafter "The Temporary Labor Force").
27. Gender and minority data are derived from a 1994 temporary work force profile study conducted for NATSS by Lauer, Lalley.
28. See, e.g., Marc Silver, "The Truth About Temping," U.S. News & World Report, November 1, 1993, p. 95; Jerry Flint, "A Different Kind of Temp," Forbes, February 28, 1994, p. 54.
29. See, e.g., Marc Silver, "The Truth About Temping," U.S. News & World Report, November 1, 1993, p. 95; Jerry Flint, "A Different Kind of Temp," Forbes, February 28, 1994, p. 54.
30. See "The Temporary Labor Force," p. 14, in which the authors conclude that the high turnover and the opportunities for finding a full-time job negate concerns that temporary work is a low-wage trap. Their study concludes that the "relatively high degree of industrial mobility suggests that a large underclass of temporary workers is unlikely to develop, since there are significant paths for moving out of temporary work."
31. See Amarnare v. Merrill Lynch, 611 F. Supp. 344 (S.D.N.Y. 1984), aff'd, 770 F.2d 157 (2d Cir. 1985).
32. See Secretary of Labor v. Manpower Temporary Services, Inc., 1977 WL 6891(OSHRC), 1977-78 O.S.H. Dec. (CCH) 21,542.
33. See Western Temporary Services, 821 F.2d 1258 (7th Cir. 1987).
34. See, e.g., Capitol EMI Music, Inc., 311 N.L.R.B. 997 (May 28, 1993).
35. See, e.g., Brock v. Superior Care, 840 F.2d 1054 (2d Cir. 1988); 29 C.F.R.§791.2. For a general overview of the laws and regulations applicable to staffing arrangements, see Lenz, "Co-Employment - Customer Liability Issues in the Staffing Services Industry," 10 The Labor Lawyer 195 (Spring 1994); Dennard and Northrup, "Leased Employment: Character, Numbers, and Labor Law Problems," 28 Georgia Law Review 683 (1994).
36. See, e.g., HR 510, 104th Cong., 1st Sess. (1995), introduced by Reps. Shays (R-CT) and Lantos (D-CA). Among other things, the bill would eliminate the prior audit safe harbor under Section 530 of the Revenue Act of 1978 and would expand the IRS' ability to draft regulations defining who is an employee for tax purposes. HR 1972 introduced by Rep. Christensen (R-NE) proposes to replace the current common law-based "20-factor" test used by the IRS for determining who is an independent contractor with a "3-factor" test which purports to be simpler and based on "economic reality." Some analysts, however, are concerned that the Christensen bill would lead to more widespread use of the independent contractor classification with a consequent loss of worker protection and a loss of tax revenue.
37. On June 21, 1993, the Department of Labor issued a list of over one hundred and fifty federal laws affecting employment, each of which with its own set of regulations. State laws and regulations are not included, nor are the tax and accounting issues, environmental or transportation statutes and regulations, or criminal laws that affect workers, employers, and their places of work. See "Outline of Statutes and Regulations Affecting the Workplace" prepared for the Commission on the Future of Worker-Management Relations by the Office of the Assistant Secretary of Labor for Policy (1993).
38. See "The Temping of America," Time, March 29, 1993, p. 47.
39. See, e.g., David R. Henderson, "The Europeanization of the U.S. Labor Market," 113 The Public Interest (Fall 1993), p. 67. Secretary of Labor Reich has warned that European government intervention in the wage-setting process and efforts to preserve, through regulation, existing patterns of employment "has retarded the creation of new jobs." See "Workers of the World, Get Smart," New York Times, July 20, 1993.
40. See, e.g., David R. Henderson, "The Europeanization of the U.S. Labor Market," 113 The Public Interest (Fall 1993), p. 67. Secretary of Labor Reich has warned that European government intervention in the wage-setting process and efforts to preserve, through regulation, existing patterns of employment "has retarded the creation of new jobs." See "Workers of the World, Get Smart," New York Times, July 20, 1993.
41. The term "employee leasing" is the subject of considerable confusion. It is often used (unhelpfully in the author's view) as a generic term to describe all forms of service arrangements involving the furnishing of labor. That is the broad sense in which it is used in the tax code. In fact, employee leasing is a distinct business service that primarily involves assuming legal and administrative responsibility for various payroll, benefits, and other human resources activities on behalf of all or most of another firm's work force. "Staffing" in the sense of recruiting, screening, training, and assuming legal responsibility for the work performed by employees, generally is not significantly involved, if at all, in such arrangements. Unlike temporary help and other staffing arrangements, employee leasing (or "professional employer" services as it is now often called), is subject to special regulation in many states.