What to Consider When Using Temporary Employment Agencies

When I suggest to job seekers the idea of contacting an agency for temporary work, I often face a wall of anxious questions. Job seekers worry about how such jobs are viewed by employers on resumes, as well as legal concerns about their rights regarding hours, pay, hours, vacation, references and other issues.

Temporary work, while it has its drawbacks, can be effective for many job seekers if it is taken through high quality agencies as part of a clear goal-directed job search strategy.

Job seekers do have some protections under the Ontario Employment Standards Act (ESA). The Ontario Ministry of Labour released an updated guide about the legal rights of temporary “assignment employees” in May 2015. Here are some relevant highlights:

Definitions

1. The assignment employee is a candidate who has been registered with a temporary agency to receive temporary work assignments; they are, by legal definition, an official employee of the agency, even between assignments, unless they resign or are terminated.
2. The temporary help agency (“temp agency“) hires employees and assigns them to perform work on a temporary basis for their clients
3. Agency clients are the employers for whom the temp agency works, with the goal of helping them fill temporary positions in their companies

Legal Rights of Temporary Assignment Employees

1. Information:

Temp agencies must provide the following to their assignment employees (in writing):

• the legal name of the agency, as well as any operating or business name of the agency (if it is different from the legal name)
• contact information for the agency, including its address, telephone number and one or more contact names
• a copy of the information sheet published by the Director of Employment Standards entitled “Your Employment Standards Rights: Temporary Help Agency Assignment Employees”.

When offered work assignments, employees must receive (can be verbal when the work assignment is offered, but must be in writing as soon as possible after):

• the legal name of the client, as well as any operating or business name of the client (if it is different from the legal name)
• contact information for the client, including its address, telephone number and one or more contact names
• the hourly or other wage rate or commission and benefits associated with the assignment
• the hours of work
• a general description of the work
• the estimated term of the assignment (if known when the offer is made)
• the pay period and pay day

2. Fees:

A temporary help agency cannot charge a fee to an assignment employee (or a prospective employee) for:

• becoming an employee of the agency
• the agency assigning or trying to assign the employee to perform temporary work for a client
• the agency providing the employee with help in preparing resumes or preparing for job interviews

3. Restrictions on Accepting Direct Employment With Agency Clients:

An agency cannot:

• restrict an assignment employee from accepting direct employment with a client
• charge a fee to a client of the agency for entering into a direct employment relationship with an agency’s assignment employee, unless the fee is charged during the first six months of the temporary contract with that client
• stop its client from providing a job reference for an assignment employee

4. Public Holidays:

Temporary help agency assignment employees generally have the same public holiday rights as other employees. (see Public Holidays and the Public Holiday Pay Calculator for more information), other than:

If a public holiday falls on a day when the employee is on an assignment and that day would ordinarily be a working day, the employee is entitled to the day off with public holiday pay, which is all the regular wages earned plus vacation pay payable in the four weeks before the week in which the holiday falls, divided by 20.

The employee may also agree, in writing, to work on the holiday, which will give them the right to:

• their regular pay for that day and a substitute day off with public holiday pay; OR,
• get premium pay for every hour worked on the holiday plus public holiday pay.

If the employee is on assignment but the holiday falls on a day that is not ordinarily a working day for the employee, they will generally get a substitute day off with public holiday pay. The employee may also agree (in writing) to public holiday pay only.

Temporary help agency assignment employees generally have the same rights as other employees to notice of termination. (See “Termination of Employment” for more information), with these exceptions:

During each week of termination notice, assignment employees are entitled to be paid of the wages they are entitled to receive, which cannot be less than:

• In the case of a termination other than that which results from a lay-off going on longer than a “temporary lay-off”, the total amount of wages earned by the assignment employee in the 12 weeks ending on the employee’s last day of work for a client of the agency, divided by 12

or,

• In the case of a termination that results from a lay-off going on longer than a “temporary lay-off”, the total amount of wages earned by the assignment employee in the 12 weeks before the deemed termination date, divided by 12.The deemed termination date is the first day of the lay-off.

If an employee is being terminated without working notice, pay in lieu of notice is calculated as the amount of wages earned in the 12 weeks ending on their last day of work for a client of the agency or, in the 12 weeks before the deemed termination date, if the termination is triggered by a lay-off going on longer than a “temporary lay-off”, divided by 12, and multiplied by the number of weeks of notice to which the employee is entitled.

Termination of employment may be triggered by a lay-off that lasts longer than a “temporary lay-off”. An assignment employee is considered to be on a week of layoff if he or she is not assigned by the agency to perform work for a client of the agency during that week, unless, for one or more days, an assignment employee

• is not able or not available for work
• refuses an offer by the agency that would not constitute constructive dismissal
• is subject to a disciplinary suspension
• is not assigned to perform work for a client of an agency because of a strike or lock-out at the agency

An assignment employee may also have a right to mass notice of termination of eight, 12 or 16 weeks. Assignment employees may have a right to mass notice of termination if 50 or more have their employment terminated by their agency in a single four-week period because their assignments at a single client’s establishment ended.

6. Severance

Temporary assignment employees generally have the same rights as other employees to severance pay. They are entitled to severance pay if their employment is severed, they have been employed for at least five years and certain other conditions are met. (see “Severance Pay” for more information).

However, some severance pay some rules apply only to assignment employees:

• To calculate the amount of severance pay an assignment employee is entitled to receive:
  • Either, in the case of a severance other than that results from a lay-off going on for 35 weeks or more in a 52-week period, take the total amount of wages earned by the assignment employee for work done for clients of the agency during the 12-week period ending on the last day the employee did work for a client of the agency
  • or, in the case of a severance that results from a lay-off going on for 35 weeks or more in a 52-week period, take the total amount of wages earned by the assignment employee for work done for clients of the agency in the 12 weeks before the first day of the lay-off
• divide the amount of severance by 12
• multiply the result in 2 above by the lesser of 26 and the sum of:
  • the number of years of employment the employee has completed; and
  • the number of completed months of employment in the incomplete year, divided by 12.

A severance of employment may be triggered by a lay-off that lasts for 35 weeks or more in a 52-week period. An assignment employee is considered to be on a week of layoff if he or she is not assigned by the agency to perform work for a client of the agency during that week. A week is not counted as a week of layoff (i.e., is an “excluded” week) if, for one or more days, an employee:

• is not able to work;
• is not available for work;
• refuses an offer by the agency that would not constitute constructive dismissal;
• is subject to a disciplinary suspension; or,
• is not assigned to perform work for a client of an agency because of a strike or lock-out at the agency.

See when severance occurs for how a lay-off results in the severance of employment.

7. Protections from Reprisals by a Client of an Agency

As the employer of an assignment employee, a temporary help agency is not allowed to penalize an assignment employee for doing things such as asking questions about his or her ESA rights, filing a claim under the ESA or otherwise asserting his or her rights.

In addition, a client of a temporary help agency is not allowed to penalize a temporary help agency assignment employee because, for example, he or she has asked about his or her ESA rights, asserted those rights, or asked the client or the agency to comply with the ESA.

That means a client is not allowed to:

• intimidate the employee
• refuse to have the employee perform work or to allow the employee to start an assignment
• terminate the assignment of the employee
• otherwise penalize or threaten to penalize the employee

8. Enforcement of Employment Rules:

Employees who believe their agency is not complying with the ESA, or that the agency or a client of the agency has penalized them for, among other things, asking about or for their ESA rights, may file a claim with the Ministry of Labour. (See Filing an Employment Standards Claim for more information.)

If there are violations of some of the rights specific to assignment employees, the Ministry of Labour can take certain actions:

• If an agency has charged an assignment employee or a prospective assignment employee a prohibited fee, an employment standards officer may issue an order to recover the fees for the employee
• If an agency has interfered with the assignment employee getting direct employment with a client of the agency or prevented a client from providing a job reference for an assignment employee, and the assignment employee has suffered damages as a result, an officer may order compensation for any loss incurred
• If a client of the agency has penalized an assignment employee, an officer may issue an order for compensation for any loss incurred and/or reinstatement in the assignment

Supports and Resources for Temporary Agency Workers

Temporary agency workers can, as mentioned, file an Employment Standards Claim with the Ministry of Labour. In addition, workers can turn to community resources that offer legal information and supports:

• The Workers’ Action Centre describes itself as a “a worker-based organization committed to improving the lives and working conditions of people in low-wage and unstable employment”. Their Workers’ Rights Information Line can be reached at (416) 531-0778
• The Community Legal Education of Ontario (CLEO) provide excellent, easy to read information sheets on a variety of legal topics, including Employment

Find Temporary Agencies

Online, Employment Agencies can be found using a Google search, or on online listings such as this list of Employment Agencies, or this Recruitment Agencies list, which can be sorted by sector or location. To ensure that you are signing up with quality agencies, look for reviews of agencies on sites such as Yelp and consider checking whether your agency is registered with the local Better Business Bureau (BBB).