United States Department of Labor
Office of Compliance Initiatives
To whom it may concern,
We at the Centro Comunitario de Trabajadores (CCT), a not for profit organization based out of New Bedford, Massachusetts (MA) that seeks to improve working conditions through organizing and community building, and Justice at Work, a Boston based not for profit organization that provides technical and legal support to worker centers and their members in low-paying jobs, write to express concerns regarding the lack of enforcement of the FFCRA and requesting that you clarify the new law and perform outreach in order to meet the law's critical purpose. New Bedford is a historic fishing port on the East Coast. While much has changed since the first efforts were made in New Bedford to garner the ocean's bounty hundreds of years ago, one thing has remained unchanged: the pride and determination of the seafood worker. We are writing on behalf of those workers, considered "essential" workers by the Governor of the Commonwealth, and struggling with children home from school and daycare, and a workplace that may expose them and their loved ones to sickness.
We thank you for the opportunity to provide our perspective with respect to how USDOL will provide employers and employees compliance assistance materials and outreach strategies for the FFCRA. We acknowledge the efforts being made to support workers during this difficult and unprecedented time, but as we are made aware on a daily basis by our worker center partners, who are still reporting to work, employers are not fulfilling their obligations under the law. Our members in New Bedford, MA are predominantly temporary workers employed by staffing agencies. The staffing agencies provide temporary laborers to fish processing plants ("host companies"). The staffing agencies claim to employ 500+ employees and are telling workers they are therefore exempt under the FFCRA. However, we are also seeing that the host fish processing plants are not providing the full benefits required by the FFCRA despite having fewer than 500 employees.
We gather from workers that the host companies argue that because the staffing company does not provide the benefits due to their size, that they too are exempt. We understand, based on the Families First Coronavirus: Questions and Answers (fn. 1) , that host companies are not exempt from the leave and benefit provisions of the FFCRA. Question 2 of the FAQs addresses the issue of the 500-employee threshold and requires that employers "include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer's payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship) (emphasis added)."
Additionally, in discussing which employees are eligible for sick leave and expanded medical and family leave, the DOL FAQ states that "[b]oth of these new provisions use the employee definition (fn. 2) as provided by the Fair Labor Standards Act, thus all of your U.S. (including Territorial) employees who meet this definition are eligible including full-time and part-time employees, and 'joint employees' working on your site temporarily and/or through a temp agency."
While some staffing agencies may be exempt due to employee numerosity, the host companies generally are not. However, in determining the number of employees a staffing agency has, we request that DOL require that the employer provide evidence (payroll information, etc.) to DOL to substantiate their exempt status. Many workers in staffing agencies are left in the dark regarding their employer's status as exempt, and requiring proof to substantiate exempt status would alleviate confusion among the workforce and would discourage arbitrary designation as exempt on the part of the staffing agencies.
Additionally, due to the nature of the work and the level of control and supervision that many host companies exercise over temp employees, they are "joint employers" as outlined in the Fair Labor Standards Act ("FLSA") and the Family and Medical Leave Act ("FMLA") and applicable regulations. These host companies are employers and, we assume, are not exempt from the sick leave and family leave benefits that must be provided to their employees under the FFCRA.
Please issue guidance that will clarify that a host company that is not exempt, if qualifying as a joint employer with an otherwise exempt staffing agency, must provide paid leave in accordance with the FFCRA to all of its workers, including those placed by the temp agency.
We further suggest that the instructions to IRS form 7200 (fn. 3) warrant the above conclusion regarding joint employment status, as the form explicitly states that common law employers are eligible for advanced payment for qualified sick and family leave wages.
Thank you for your time and attention to this important matter.