This alert summarizes a complex
issue that is the subject of a more detailed overview prepared by Gretchen
Ostroff, a member of the Vandeventer Black Construction and Government
Contracts Practice Group. Gretchen’s detailed overview is available on the firm
website.
THE ISSUE:
Virginia’s contractor licensing
requirements do not specifically address licensure of temporary staffing
agencies; but several other states with similar licensing requirements have
held that temporary staffing agencies must be licensed as contractors if they
supply laborers to construction projects. Lack of licensure subjects the
temporary staffing agencies, those hiring them, and potentially contractors at higher
tiers, to potential criminal violations, as well as administrative penalties such
as fines, suspension, or license revocation.
WHY NOW?
Responding to the Governor’s
earlier Executive Order, the Virginia Department of Labor and Industry (“VDOL”)
recently issued a policy memorandum outlining its commitment to prevent “worker
misclassification” for “independent contractors”, who VDOL interpreted as
actually being “employees”. An inter-agency task force was established in
conjunction with that worker misclassification prevention effort, which includes
the Virginia Department of Professional and Occupational Regulation (“DPOR”).
Associated new policy requires a
contractor working in a “multi-employer worksite situation” to provide proof of
its DPOR contractor’s license and proof of the DPOR license for all
subcontractors. The policy also eliminates penalty reductions for small companies
and companies acting in good faith. While independent contractors were
specifically targeted, temporary laborers were not specifically addressed.
The prevalence of temporary labor
in the construction industry is nothing new. Skilled or unskilled, temporary
workers perform numerous roles on construction jobsites. Various contractors at
all tier levels often wholly or partially outsource project labor, among other
things enabling them to reduce overhead while maintaining a ready supply of
workers on an as-needed basis. Because most temporary staffing agencies do not
consider themselves “contractors”, they typically do not hold contractor
licenses through DPOR.
WHAT ABOUT VIRGINIA?
There are some states that
statutorily address temporary labor services for contracting purposes. For
example, California law defines “contractor” as including temporary labor
services. Typically, though, even if addressed such as in California, licensure
is not required for the temporary labor company if the temporary employees work
under the supervision of a licensed contractor.
Two recent state courts, West
Virginia and Alabama, have looked at the question where temporary labor
services were not statutorily addressed. While using different analyses, both
courts held that temporary staffing agencies required contractor licensure. Of note, the contracting licensure
requirements of those states were similar to Virginia’s statutes and
regulations.
In the West Virginia case, the
court took a broad view of temporary laborers, and concluded that since the
temporary workers were engaged in construction work, it did not matter in what
particular trade they were performing – licensure was required. The Alabama
court took a more narrow view that focused on the particular “construction
activity” involved, and indicated that, for example, menial labor might not
require temporary agency licensure, but that for typical construction
activities, licensure was required.
So where does that leave
Virginia? That remains the unanswered question. In contrast to states like
California, Virginia’s statutes and regulations are silent regarding temporary
staffing and, unlike West Virginia or Alabama, there are no reported cases yet
addressing this question. Nor, yet, has either VDOL or DPOR stated their positions.
But it should be noted that the stated rationales of the task force for its
worker misclassification concerns included similar rationales to those used by
both the West Virginia and Alabama courts.
Until Virginia addresses the issue
by statute, regulation, or case holding, the outcome in Virginia remains
uncertain-- putting both temporary labor agencies and the contractors that use/allow
them at risk.
THE OPTIONS:
Short of advocating for
legislative or regulatory change, the options are limited. One option is for
temporary labor agencies to obtain licensure. That is the most certain approach
for both the temporary labor agency and any contractor using temporary labor. A
second option is to presume licensure is not required until a contrary ruling
is made, and hope licensure is deemed not required.
However, that second approach
places both the temporary labor agency and the hiring contractor (and higher
tier contractors) at significant risk. Even if the temporary labor agency and the
contractor determine licensure is not required, DPOR may not agree. That puts
them, and potentially contractors at higher tiers, at risk for violating the
law; for which the fines and punishments can be severe, in addition to putting
them at risk for associated contract breach damages.
FOR
MORE INFORMATION:
This is just one more example of the
complexities and risks associated with contracting. For more information about this
issue, or any other government or construction contracting matters, Vandeventer
Black’s Construction and Government Contracts Group team of attorneys are
poised to help navigate those needs. Please visit the firm’s website to learn
more about the firm and our professionals at www.vanblacklaw.com.
SUPPLEMENT - February 15, 2016:
As a follow up to this recent blog, we thought it of interest to note that we received comment back from one of our recipients that a VDOL representative had informally expressed the view that the worker misclassification policy was going to be interpreted by VDOL as meaning that the individual works hired from temporary employment agencies did not require licensure.
SUPPLEMENT - February 15, 2016:
As a follow up to this recent blog, we thought it of interest to note that we received comment back from one of our recipients that a VDOL representative had informally expressed the view that the worker misclassification policy was going to be interpreted by VDOL as meaning that the individual works hired from temporary employment agencies did not require licensure.
If that becomes VDOL’s formal policy that helps clarify one aspects of the misclassification and licensure issues we noted. But even if so it still remains currently unclear whether that view, if applied by DDOL, will apply the individual workers only, or also to the temporary employment agencies providing them, and also whether DPOR will take a similar position or positions since agencies unfortunately at times take dissimilar positions on similar issues.
Our team will continue to try and provide update respecting this issue as new information develops.