§ 4.2 Special Problems Regarding Temporary Agencies

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 4.2 SPECIAL PROBLEMS REGARDING TEMPORARY AGENCIES

Many unauthorized workers—often because the workers cannot document employment eligibility—are employed by labor intermediaries (subcontractors, temporary agencies, labor contractors, etc.) who assume the risk of employer sanctions and provide workers to the enterprise who will use their labor in its business. Often, such labor intermediaries are not well-capitalized, and they lack the capacity to respond in damages for labor exploitation. Even if the courts sanction these labor intermediaries and they go bankrupt, they are easily replaced by the ultimate user of the labor.

Some laws, including the FLSA, the MSAWPA, the Family and Medical Leave Act of 1993 (5 USC §§ 6381-6387; 29 USC §§ 2601-2654), and Oregon's minimum wage law (ORS 653.010-653.261), share a definition of employ that is extremely broad and may encompass the end user of the labor as an employer responsible for complying with the act in question. See 29 USC § 203(g); 29 USC § 1802(5); 29 USC § 2611(3); ORS 653.010(2). This definition, which defines the term employ to include...