October 19, 2021

ManpowerGroup Reports Third Quarter 2021 Results
AmEx Employees Can Work From Anywhere for Up to Four Weeks a Year
Southwest Warns of Need for More Staff to End Disruptions
Amazon to Hire 150,000 U.S. Workers for Holiday Shopping Season
Review Commission Finds No Employer Knowledge of Violative Condition Resulting From Unforeseen Employee Action
Fifth Circuit: Six Figure Employee Entitled to Overtime
California Announces 2022 Increase in Compensation Rate for Computer Professional Exemption
New Employment Laws Taking Effect in Maryland in 2021
Employers Anxious About Vaccine Mandate
Majority of Workers Believe Empathetic Leadership Leads to Higher Job Satisfaction
Survey: Bots Will Be Important for the Future of Work

Upcoming Events

ASA Proposes Small Business Size Standards for OSHA Covid ETS

On Oct. 18, ASA submitted a letter to the U.S. Office of Information and Regulatory Affairs asking that the forthcoming Covid-19 Emergency Temporary Standard, which will apply to businesses with 100 or more employees, consider the unique operating characteristics of staffing agencies by including alternative size tests for determining their small business status under the ETS.

ASA proposed that the ETS adopt the headcount approach used for determining employer eligibility for the Employee Retention Tax Credit under the Taxpayer Certainty and Disaster Tax Relief Act of 2020—i.e., 130 hours per month, without regard to full-time equivalent employees.

ASA also proposed that the ETS should include alternative size tests for determining small business status based on financial measures like revenue and assets. The letter suggested that the ETS adopt the tests used in the federal Paycheck Protection Program. Under the PPP, a staffing agency is a small business concern if its annual revenue is $30 million or less. The letter further suggested that the ETS include a size test similar to the “alternative size standard” from the U.S. Small Business Administration, under which a borrower was considered a small concern if its maximum tangible net worth at the time of application was not more than $15 million and its average net income after federal income taxes (excluding any carryover losses) for the prior two full fiscal years was not more than $5 million.

ASA is in the process of seeking a meeting with OIRA to discuss these proposals.

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ASA Files Amicus Brief With U.S. Supreme Court on Per Diem Class Action Ruling

On Oct. 18, ASA filed an amicus brief asking the U.S. Supreme Court to review a class action relevant to health care staffing agencies and others that reimburse traveling workers through per diem payments.

ASA asked the court to reverse a Ninth Circuit Court of Appeals ruling that a health care staffing agency’s payments are compensation for work and thus must be included in traveling workers’ regular rate of pay for overtime purposes. If allowed to stand, the Ninth Circuit’s decision could harm many staffing agencies, particularly in the health care sector. As many as 20 other firms face or have faced similar lawsuits.

Per diem payments may be excluded from calculation of overtime under the Fair Labor Standards Act if the payments reimburse workers for meals, incidentals, and housing incurred on behalf of the employer while working away from home. They may not, however, effectively function as compensation for work.

The plaintiffs allege that the agency’s per diem payments functioned as compensation because they were prorated when the workers did not work hours or shifts required under their contracts. The trial court rejected this argument, but the Ninth Circuit reversed, holding that a combination of factors indicated that the payments functioned as compensation for hours worked. The factors included tying the per diem deductions to shifts not worked regardless of the reason for not working. The ASA brief argues that the court incorrectly interpreted the relevant statute to prohibit such practice.

The Supreme Court reviews only a limited number of cases each session, and it will be several months before it is announced if the court will grant review of this case. ASA is represented by one of the top Supreme Court litigators in the country: Donald Verrilli, who was U.S. Solicitor General from 2011 to 2016.

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Free ASA Webinar Next Week—Certification for Health Care Staffing Firms

Now more than ever, health care organizations need qualified staff they can rely on—earning certification from the Joint Commission can help a health care staffing firm become a preferred partner for its clients. Learn about the Health Care Staffing Services certification and find out how your firm can benefit from earning this certification during the ASA webinar “Joint Commission Updates for Health Care Staffing Firms,” brought to you by the ASA health care section. It takes place Tuesday. Oct. 26, 3–4 p.m. Eastern time.

All ASA webinars are free for ASA members, and most qualify for continuing education hours toward ASA certification renewal. To learn more and to register, visit americanstaffing.net.

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Track Staffing Employment in Nearly Real Time

Temporary and contract staffing employment is 27% higher than the same week last year, according to the ASA Staffing Index.

Want to know more? Complete the ASA Staffing Index survey to get updated information on industry trends, including new staffing starts data. Staffing firms with U.S. operations can participate in the weekly survey, and there are no fees to participate.

Participants receive a weekly email summary report—in addition to statistics by company size and access to historical data and dynamic charts.

Register today at americanstaffing.net/staffing-index.

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Staffing Today is published by the American Staffing Association, with news abstracts copyrighted in 2021 by SmithBucklin of Chicago, IL, and all other content copyrighted in 2021 by ASA. No part of this publication may be reproduced without permission.

About ASA

The American Staffing Association is the voice of the U.S. staffing, recruiting, and workforce solutions industry. Learn more at americanstaffing.net.

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