Many years ago, I had a series of cases in which my clients happened to be temporary staffing companies. These cases dealt with complex indemnity issues, the borrowed servant doctrine, covenants-not-to-compete, and other related issues. I found myself asking the same question – “Why did you sign that?” The clients hemmed and hawed, but the answer finally, reluctantly, emerged – they didn’t want to pay $250 for an email exchange; $500 for a letter; or $1500 to $3000 for a detailed contract review. When I pointed out that they are now paying me tens of thousands of dollars in litigation fees they sheepishly responded, “I know, I know, I know....” But the pattern continued.
It was then that I realized that many business owners have a real and deep-seated fear of attorneys – that they won’t reach out until pushed to the brink of the precipice. This troubled me, because I knew that if they had just reached out to me at the front end, we could have easily avoided the litigation that they were embroiled in. And more importantly, they could have avoided the incredible stress and economic drain that litigation involves.
Working late one evening I got a call from one of my staffing clients about a case we were deeply involved in. At the end of the conversation he asked, “By the way, how much is this call going to cost me?” Without thinking I responded, “Nothing.” I thought about it for half a second and then responded more firmly – “Nothing.” And Safe Staffing was born.
Temporary staffing is a broad term that encompasses staffing, recruiting, and workforce solutions across a wide range of industries. Nearly 3 million temporary and contract employees work for America’s staffing companies during an average week. During a year, America’s staffing companies hire over 14.5 million temporary and contract employees. The length of a temporary assignment can be as short as one day or extend over a year depending on the nature of the assignment and the type of industry being served. Temporary workers are employed in industries as diverse as light-industrial, skilled labor, clerical / administrative, IT, engineering, health care, and professional (including lawyers!). There are about 25,000 staffing and recruiting companies in the U.S., which operate around 49,000 offices across the country.
Safe Staffing is a legal program developed specifically for staffing companies. This program does not follow the typical hourly billing model. Instead, it is a subscription service where the staffing clients pay a flat fee and have open access to all of the legal services they need. No more fear of emails and phone calls. No more crisis management. No more signing unfavorable agreements that land you in court.
Transitioning from a litigation-focused practice into a more transactional type of practice was easier than I expected. When reviewing policy/procedure manuals or service agreements I found myself asking: “How would a judge interpret that clause?” “Would a jury think that this part of the agreement is fair?” I came to realize that my litigation background was of tremendous value in transactional work. One of the greatest joys I found was that I was able to develop long-term relationships with my clients. Unlike the one-and-done litigation model where the client relationship ends at the end of the trial, I guide my staffing clients through tough times and feel the incredible satisfaction of watching their businesses grow and succeed.
Once I made the deep dive into staffing law I quickly learned how interesting and diverse this niche area can be. And fun! My first introduction into staffing law was litigating indemnity claims dealing with complex co-employment and borrowed servant issues involving multi-tiered defendants. But as I dove in deeper, I found that I was learning something new and interesting every day. For instance, the only two types of service animals recognized under the ADA are canines and…miniature horses. Yes! Miniature horses! This was something I did not know. I have yet to see a miniature horse on an airplane, but now I won’t be surprised if I do.
Through the Safe Staffing program, I am exposed to the unexpected pleasure of collaborative law. Litigation is, by definition, an adversarial process. I have sat across the aisle from some truly outstanding, professional, and collegial litigators – great attorneys – warm and friendly people. But at the end of the day we were still adversaries. When I started negotiating agreements for my staffing clients, I had my first real exposure to in-house counsel employed by my clients’ clients. My initial reaction – “Wow! These folks are relaxed!” It was a new experience to collaborate with attorneys on the other side and focus on how I can make their jobs easier and their companies more protected. For instance, I can explain why “co-employment” is not necessarily a bad thing in a temporary staffing context and may actually protect the client company from risk and liability.
Staffing law covers a broad range of areas including basic human resources, risk management, administrative law (EEOC, OSHA, ACA, etc.), contract law, and, yes, litigation. There is never a dull moment – I am always running into something new and unique. This keeps my practice fresh and engaging. But the greatest thing, by far, in my staffing law practice is my clients. They are simply the best! When I began the Safe Staffing program I joined the state staffing trade association. I now serve as the chair of its political action committee. I have the wonderful opportunity to work daily with staffing professionals to address legal and political issues that affect the staffing industry.
