2011 ASA Staffing Law Conference Targets Key Legal Issues

Staffing firm owners and managers, lawyers, and human resource professionals from across the country gathered in Washington, DC, last week to take part in the ASA Staffing Law Conference, an annual event devoted to legal issues affecting the staffing industry.

At a time when staffing firms are facing monumental changes to the labor and employment law landscape, the conference attracted a record number of attendees.

ASA chairman Bill Yoh, CSP, TSC, of Yoh, kicked off the conference by welcoming attendees and emphasizing the important role the staffing industry plays in the economic recovery. Yoh mentioned efficiency, productivity, and competitiveness as the key elements of helping put Americans back to work.

Next, chief regulators from the U.S. Department of Labor, U.S. Immigration and Customs Enforcement, and the U.S. Equal Employment Opportunity Commission discussed their agencies' enforcement agendas and how their goals might affect the staffing industry.

Nancy Leppink of DOL's Wage and Hour Division remarked that the agency wants to work with organizations like ASA to help promote workplace compliance in the areas of wage and hour rules and worker classification. Leppink emphasized that the agency's focus is on vulnerable workers, and DOL is targeting companies that "obscure the employment relationship," including staffing firms. ASA pledged to continue to discuss these concerns with regulators and educate them on not only the benefits of temporary employment, but also the high degree of ethics, professionalism, and legal compliance exhibited by ASA member companies.

Brett Dreyer of ICE updated attendees on employment eligibility verification policies that the agency promotes as a way to foster a culture of compliance among employers. Dreyer noted that although the agency has dramatically increased work site enforcement efforts, it is targeting those unscrupulous employers that are not playing by the rules.

Patrick Patterson of the EEOC took the opportunity to explain the recently enacted regulations under the Americans With Disabilities Act Amendments Act (see the April 4 issue of Staffing Week). Patterson noted that this was a bipartisan effort to broaden the definition of disability after it was narrowed by the U.S. Supreme Court through case law in recent years. Patterson also stated that a review of the Age Discrimination in Employment Act is forthcoming.

To address the priorities of the 112th Congress, ASA welcomed speaker Rep. John Kline (R-MN), chairman of the U.S. House Committee on Education and the Work Force. Rep. Kline talked about the ongoing budget issues in the federal government, the need to reduce federal spending, and the importance of stimulating private sector growth. He also discussed promoting more flexibility for employers and employees under the Fair Labor Standards Act and the "blizzard of regulations" forthcoming on the federal health care reform law.

In other sessions during the conference, national labor and employment law experts addressed the latest developments in and compliance issues relating to social media, indemnity clauses in contracts, worker misclassification, and other topics.

Discussing a new and emerging area of the law, Gerald Maatman of Seyfarth Shaw LLP detailed the legal do's and don'ts of using social media. Maatman spoke about the "cyber footprints" that social media users make and how staffing firms can best manage their risks in an area of the law that is still developing. As Maatman noted, technology moves much faster than the law and can present some significant challenges for employers. He encouraged all staffing firms to put a social media policy in place.

A panel session on indemnity provisions in staffing contracts was presented by attorneys Steven Whitehead of Barnes & Thornburg LLP; Jim Essey, CSP, of the TemPositions Group of Cos.; and Diana Karabelas of Adecco Group North America. The panelists discussed the importance of defining "staffing services" and detailing the scope of indemnity between the staffing firm and client. They also addressed how staffing firms can discuss with their clients the indemnity provisions that fairly apportion risk based on the principle that each party is responsible for its own business.

Federal and state governments' efforts to crack down on worker misclassification, a hot topic nationally, was the focus of a panel of legal experts that included Lisa Cooney of Yoh, Whitney Laughlin of AMN Healthcare, and Barbara Stockman of Kelly Services. They noted that the increased enforcement efforts are a byproduct of the fact that states are stuck in dire financial situations and attempting to recoup revenue from companies that improperly classify workers as independent contractors. (See the Feb. 14 issue of Staffing Week.)

On the second day of the conference, attendees were treated to a briefing on the federal health care reform law and its affect on the staffing industry by panelists Alden Bianchi of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo; Anne Phelps of Washington Council Ernst & Young; Heather Meade of Washington Council Ernst & Young; and Ed Lenz of ASA. Panelists discussed how the employer excise tax provisions, which are set to go into effect in 2014, will affect staffing firms. Efforts by ASA to mitigate the effects of the law on the staffing industry were also discussed.

If you missed the Staffing Law Conference or want to revisit the sessions presented there, recordings soon will be available on ASAPro—the association's online professional development center. Members will be notified when the archived courses are available.

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