Confusion persists as to whether staffing agencies or their clients should claim the agency’s temporary employees in determining loan eligibility under the Paycheck Protection Program of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

In a previous issue paper, ASA discussed the general rule that, as the common law employer of temporary employees, only the staffing agency should claim those employees for PPP purposes, not the client. In a revised issue paper, ASA counsel Marc J. Gerson of Miller & Chevalier points out that the issue of which party can claim the employees has not been addressed in the CARES Act or in guidance from the U.S.
Small Business Administration; and that, in the absence of guidance, clients may have a legal basis for also claiming the employees for PPP purposes, provided the staffing agency and client do not both claim the same employees.