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The Contest over “Employer” Status in the Postwar United States: The Case of Temporary Help Firms

Published online by Cambridge University Press:  02 April 2024

George Gonos
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Abstract

This study examines the sociolegal underpinnings of the “temporary help” relationship as one kind of contingent work arrangement and explores how it became institutionalized in the post-World War II United States. While the American literature on contingent work suggests its tremendous growth has been merely a result of changing “human resource” strategies on the part of business managers, the focus here is on the specific role played by courts, state legislatures, and government administrative bodies in ratifying the temporary help arrangement as legal and legitimate. The article details the obscure history of the campaign waged by temporary help firms to win their claim as the legal employers of workers they send out to client firms, a central premise of the arrangement. It shows that statutory and policy changes supporting the increased use of “temporary work” were in place by the early 1970s, in time for its expanded use to play a key role in the restructuring of U.S. employment relations since that time.

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Law & Society Review , Volume 31 , Issue 1 , 1997 , pp. 81 - 110
Copyright
Copyright © 1997 by The Law and Society Association.

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Footnotes

Earlier versions of this article were presented at the 1995 meetings of the Law and Society Association and the Eastern Sociological Society. For detailed comments and helpful suggestions I thank Kathleen Barker, Kathleen Christensen, Michael Fischl, Judith Gerson, Jeffrey Keefe, Charles Nanry, D. Randall Smith, Christopher Tomlins, Steven Vallas, and several anonymous reviewers for Law & Society Review.

References

References

Abraham, Katherine G. (1990) “Restructuring the Employment Relationship: The Growth of Market-Mediated Work Arrangements,” in Abraham, K. G. & McKersie, R. B., eds., New Developments in the Labor Market: Toward a New Institutional Paradigm. Cambridge: MIT Press.Google Scholar
Alito, Rosemary (1992) New Jersey Employment Law. Newark: New Jersey Law Journal Books.Google Scholar
Ansberry, Clare (1993) “Workers Are Forced to Take More Jobs with Few Benefits,” Wall Street J., pp. A1–A9 (11 March).Google Scholar
Asian Law Caucus et al. (1994) “Statement on Changes to Current Labor Laws Necessary to Address the Critical Needs of the Contingent Workforce.” Submitted Before the Commission on the Future of Worker-Management Relations. Washington: U.S. Department of Labor (7 Oct.).Google Scholar
Axelrod, Jonathan G. (1987) “Who's the Boss? Employee Leasing and the Joint Employer Relationship,” 3 Labor Lawyer 853.Google Scholar
Becker, Craig (1996) “Labor Law Outside the Employment Relation,” 74 Texas Law Rev. 1527.Google Scholar
Belous, Richard S. (1989) The Contingent Economy: The Growth of the Temporary, Part-Time and Subcontracted Workforce. Washington: National Planning Association.Google Scholar
Bourdieu, Pierre (1987) “The Force of Law: Toward a Sociology of the Juridical Field,” 38 Hastings Law J. 805.Google Scholar
Burch, Philip (1975) “Interest Groups,” in Rosenthal, A. & Blydenburgh, J., eds., Politics in New Jersey. New Brunswick, NJ: Eagleton Institute.Google Scholar
Week, Business (1966) “Labor-for-Rent War,” Business Week, pp. 160–62 (5 Nov.).Google Scholar
Callaghan, Polly, & Hartmann, Heidi (1991) Contingent Work: A Chart Book on Part-Time and Temporary Employment. Washington: Economic Policy Institute.Google Scholar
Carré, Françoise J. (1992) “Temporary Employment in the Eighties,” in duRivage, V. L., ed., New Policies for the Part-Time and Contingent Workforce. Armonk, NY: M. E. Sharpe.Google Scholar
Carré, Françoise J., duRivage, Virginia L., & Tilly, Chris (1995) “Piecing Together the Fragmented Workplace: Unions and Public Policy on Flexible Employment,” in Flood, L. G., ed., Unions and Public Policy: The New Economy, Law, and Democratic Politics. Westport, CT: Greenwood Press.Google Scholar
Casebeer, Kenneth M. (1994) “Unemployment Insurance: American Social Wage, Labor Organization and Legal Ideology,” 35 Boston College Law Rev. 259.Google Scholar
Castro, Janice (1993) “Disposable Workers,” Time, pp. 43–47 (29 March).Google Scholar
Christensen, Kathleen (1988) “Independent Contracting,” in Flexible Workstyles: A Look at Contingent Labor (Conference Summary). Washington: Women's Bureau, U.S. Department of Labor.Google Scholar
Contemporary Times (1982a) “Co-Mingling,” Contemporary Times, pp. 20–21 (Fall).Google Scholar
Contemporary Times (1982b) “Legislative Monitoring—An Association Necessity,” Contemporary Times, p. 15 (Winter).Google Scholar
Cordova, Efren (1986) “From Full-Time Wage Employment to Atypical Employment: A Major Shift in the Evolution of Labour Relations?” 125 International Labour Rev. 641.Google Scholar
Council of State Governments (1950-90) The Book of the States, vols. 8–28. Lexington, KY: Council of State Governments.Google Scholar
Dye, Thomas R. (1971) “State Legislative Politics,” in Jacob, H. & Vines, K. N., eds., Politics in the American States: A Comparative Analysis. Boston: Little, Brown.Google Scholar
Edsall, Thomas Byrne (1984) The New Politics of Inequality. New York: W. W. Norton.Google Scholar
Epstein, E., & Monat, J. (1973) “Labor Contracting and Its Regulation: I,” 107 International Labour Rev. 451.Google Scholar
Fierman, Jaclyn (1994) “The Contingency Work Force,” Fortune, pp. 30–36 (24 Jan.).Google Scholar
Finney, Martha I., & Dasch, Deborah A. (1991) A Heritage of Service: The History of Temporary Help in America. Alexandria, VA: National Association of Temporary Services.Google Scholar
Galambos, Louis, & Pratt, Joseph (1988) The Rise of the Corporate Commonwealth: United States Business and Public Policy in the 20th Century. New York: Basic Books.Google Scholar
Gonos, George (1994) “A Sociology of the Temporary Employment Relationship.” Ph.D. diss., Sociology, Rutgers Univ.Google Scholar
Gottfried, Heidi (1991) “Mechanisms of Control in the Temporary Help Service Industry,” 6 Sociological Forum 699.Google Scholar
Gottfried, Heidi (1992) “In the Margins: Flexibility as a Mode of Regulation in the Temporary Help Service Industry,” 6 Work, Employment & Society 443.Google Scholar
Greller, Martin M., & Nee, David M. (1989) From Baby Boom to Baby Bust: How Business Can Meet the Demographic Challenge. Reading, MA: Addison-Wesley.Google Scholar
Harrison, Bennett, & Bluestone, Barry (1987) “Labour Market Analysis and Employment Planning: The Dark Side of Labour Market ‘Flexibility’: Falling Wages and Growing Income Inequality in America.” Geneva: International Labour Office, Working Paper No. 17.Google Scholar
Harrison, Bennett, & Bluestone, Barry (1988) The Great U-Turn: Corporate Restructuring and the Polarizing of America. New York: Basic Books.Google Scholar
Heckscher, Charles C. (1988) The New Unionism: Employee Involvement in the Changing Corporation. New York: Basic Books.Google Scholar
International Labour Office (1966) “Interpretation of Decisions of the International Labour Conference: Fee-Charging Employment Agencies Convention (Revised),” 49 Official Bull. 389.Google Scholar
Janoski, Thomas (1990) The Political Economy of Unemployment: Active Labor Market Policy in West Germany and the U.S. Berkeley: Univ. of California Press.Google Scholar
Johnston, David Cay (1995) “Are You Your Own Boss? Only If the IRS Says So,” New York Times, p. F13 (19 March).Google Scholar
Kilborn, Peter T. (1991) “Part-Time Hirings Bring Deep Change in U.S. Workplaces,” New York Times, p. A1 (17 June).Google Scholar
Klare, Karl E. (1981) “Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law,” 4 Industrial Relations Law J. 450.Google Scholar
Kochan, Thomas A., Katz, Harry C., & McKersie, Robert B. (1986) The Transformation of American Industrial Relations. New York: Basic Books.Google Scholar
Kornbluh, Joyce L. (1988) “Historical Perspectives on Part-Time and Temporary Workers,” in Flexible Workstyles: A Look at Contingent Labor (Conference Summary). Washington: Women's Bureau, U.S. Department of Labor.Google Scholar
Lenz, Edward A. (1985a) “The Status of Temporary Help Companies as Employers: A Legal Update,” Contemporary Times, pp. 8–10 (Summer).Google Scholar
Lenz, Edward A. (1985b) “Getting Involved: Why Grass Roots Political Relationships are the Key to Effective Legislative Advocacy,” Contemporary Times (Winter) (un-paginated reprint).Google Scholar
Lenz, Edward A. (1987) “Annual Review of NATS Legislative and Regulatory Activity,” Contemporary Times, pp. 28–31 (Winter).Google Scholar
Lenz, Edward A. (1990a) “Temporary Help Customers Risk Liability Using ‘Independent Contractors,‘” Contemporary Times, p. 50 (Summer).Google Scholar
Lenz, Edward A. (1990b) “Apples and Oranges: Some Key Operational and Legal Differences between Temporary Help and Other Services,” Contemporary Times, pp. 15–18 (Fall).Google Scholar
Lenz, Edward A. (1991) “Law Notes,” Contemporary Times, pp. 37–42 (Spring).Google Scholar
Lenz, Edward A. (1994) Co-employment: Employer Liability Issues in Staffing Services Arrangements. Alexandria, VA: National Association of Temporary Services.Google Scholar
Levitan, Sar A., & Cooper, Martha R. (1984) Business Lobbies: The Public Good and the Bottom Line. Baltimore: John Hopkins Univ. Press.Google Scholar
Lewis, William M., & Malloy, Nancy H. (1991) How To Choose and Use Temporary Services. New York: American Management Association.Google Scholar
Lewis, William, & Schuman, Nancy (1988) The Temp Worker's Handbook: How to Make Temporary Employment Work for You. New York: American Management Association.Google Scholar
Lofquist, William S. (1993) “Legislating Organizational Probation: State Capacity, Business Power, and Corporate Crime Control,” 27 Law & Society Rev. 741.Google Scholar
Macionis, John J. (1995) Sociology. 5th ed. Englewood Cliffs, NJ: Prentice-Hall.Google Scholar
Mackail, Laura (1988) “OPM Opens Doors to Private Sector Temporaries,” Contemporary Times, pp. 46–47 (Winter).Google Scholar
Mangum, Garth, Mayall, Donald, & Nelson, Kristin (1985) “The Temporary Help Industry: A Response to the Dual Internal Labor Market,” 38 Industrial & Labor Relations Rev. 599.Google Scholar
Mattera, Philip (1995) “Temping Fate,” In These Times, pp. 14–17 (18 Sept.).Google Scholar
McClure, Laura (1994) “Working the Risk Shift,” Progressive, pp. 23–27 (Feb.).Google Scholar
Mertz, Elizabeth (1994) “A New Social Constructionism for Sociolegal Studies,” 28 Law & Society Rev. 1243.Google Scholar
Moberly, Robert B. (1987) “Temporary, Part-Time, and Other Atypical Employment Relationships in the U.S.,” 38 Labor Law J. 689.Google Scholar
Moody, Kim (1988) An Injury to All: The Decline of American Unionism. New York: Verso Press.Google Scholar
Moore, Mack A. (1965a) “The Legal Status of Temporary Help Services,” 16 Labor Law J. 620.Google Scholar
Moore, Mack A. (1965b) “The Temporary Help Service Industry: Historical Development, Operation and Scope,” 18 Industrial & Labor Relations Rev. 554.Google Scholar
Moore, Mack A. (1975) “Proposed Federal Legislation for Temporary Labor Services,” 26 Labor Law J. 767.Google Scholar
Morrow, Lance (1993) “The Temping of America,” Time, pp. 40–41 (29 March).Google Scholar
Natti, Jouko (1993) “Temporary Employment in the Nordic Countries; A ‘Trap’ or a ‘Bridge‘?” 7 Work, Employment & Society 451.Google Scholar
Neather, Andy (1995) “The Temp-ing of America,” Solidarity, pp. 10–14 (Jan.-Feb.).Google Scholar
Newman, Katherine S. (1993) Declining Fortunes: The Withering of the American Dream. New York: Basic Books.Google Scholar
Parker, Robert E. (1994) Flesh Peddlers and Warm Bodies: The Temporary Help Industry and Its Workers. New Brunswick, NJ: Rutgers Univ. Press.Google Scholar
Ricca, Sergio (1982) “Private Temporary Work Organizations and Public Employment Services: Effects and Problems of Coexistence,” 121 International Labour Rev. 141.Google Scholar
Rogers, Jackie Krasas (1995) “Just a Temp: Experience and Structure of Alienation in Temporary Clerical Employment,” 22 Work & Occupations 137.Google Scholar
Rosenberg, Samuel (1989) The State and the Labor Market. New York: Plenum Press.CrossRefGoogle Scholar
Rosenthal, Alan (1975) “The Governor, the Legislature, and State Policy Making,” in Rosenthal, A. & Blydenburgh, J., eds., Politics in New Jersey. New Brunswick, NJ: Rutgers Univ. Press.Google Scholar
Rosenthal, Alan (1993) “The Legislative Institution—In Transition and at Risk,” in C. E.Google Scholar
Horn, Van, ed., The State of the States. Washington: CQ Press.Google Scholar
Ross, Michael J. (1987) State and Local Politics and Policy: Change and Reform. Englewood Cliffs, NJ: Prentice-Hall.Google Scholar
Selznick, Philip (1969) Law, Society and Industrial Justice. New York: Russell Sage Foundation.Google Scholar
Service Employees International Union (1993) Part-Time, Temporary, and Contracted Work: Coping with the Growing Contingent Workforce. Washington: Service Employees International Union.Google Scholar
Siebert, Walter V., & Webber, N. Dawn (1987) “Joint Employer, Single Employer, and Alter Ego,” 3 Labor Lawyer 873.Google Scholar
Steinberg, Bruce (1995) “Industry Perceptions: How NATSS Is Tailoring the Messages We Send,” Contemporary Times, pp. 25–34 (Spring).Google Scholar
Stinchcombe, Arthur L. (1983) Economic Sociology. New York: Academic Press.Google Scholar
Tansky, Judith W., & Veglahn, Peter A. (1995) “Legal Issues in Co-employment,” 46 Labor Law J. 293.Google Scholar
Tomlins, Christopher L. (1985) The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960. New York: Cambridge Univ. Press.Google Scholar
Treu, Tiziano (1992) “Labor Flexibility in Europe,” 131 International Labour Reu. 497.Google Scholar
U. S. Congress (1971) Hearings before the Special Subcommittee on Labor of the Committee on Education and Labor on H.R 10349, A Bill to Establish and Protect the Rights of Day Laborers. 92d Cong. Washington: GPO.Google Scholar
U. S. Department of Labor (1960) State Laws Regulating Private Employment Agencies, Bull. 209. Washington: Bureau of Labor Standards (Jan.).Google Scholar
U. S. Department of Labor (1962) State Laws Regulating Private Employment Agencies, Bull. 252. Washington: Bureau of Labor Standards (Dec.).Google Scholar
U. S. Department of Labor (1994a) Fact-Finding Report: Commission on the Future of Worker-Management Relations. Washington: U.S. Department of Labor.Google Scholar
U. S. Department of Labor (1994b) Report and Recommendations: Executive Summary: Commission on the Future of Worker Management Relations. Washington: U.S. Department of Labor.Google Scholar
U. S. Department of Labor (1995) Contingent and Alternative Employment Arrangements. Washington: Bureau of Labor Statistics, U.S. Department of Labor.Google Scholar
U. S. General Accounting Office (1986) Employment Service: More Jobseekers Should Be Referred to Private Employment Agencies. Report to the Chairman, Committee on Governmental Affairs, U.S. Senate (March). Washington: GPO.Google Scholar
U. S. General Accounting Office (1991) Workers at Risk: Increased Numbers in Contingent Employment Lack Insurance, Other Benefits. Report to the Chairman, Subcommittee on Employment and Housing, Committee on Government Operations, House of Representatives. Washington: GPO.Google Scholar
Valticos, Nicolas (1973) “Temporary Work Agencies and International Labour Standards,” 107 International Labour Rev. 43.Google Scholar
Veldkamp, G. M. J., & Raetsen, M.J. E. H. (1973) “Temporary Work Agencies and Western European Social Legislation,” 107 International Labour Rev. 117.Google Scholar
Weiler, Paul C. (1990) Governing the Workplace: The Future of Labor and Employment Law. Cambridge: Harvard Univ. Press.CrossRefGoogle Scholar
Wells, Miriam J. (1987) “Legal Conflict and Class Structure: The Independent Contractor-Employee Controversy in California Agriculture,” 21 Law & Society Rev. 49.Google Scholar
Whalen, Bob, & Dennis, Susan (1991) “The Temporary Help Industry: An Annual Update,” Contemporary Times, pp. 10–14 (Spring).Google Scholar
Wood, Stephen (1989) The Transformation of Work? Skill, Flexibility and the Labour Process. London: Unwin Hyman.Google Scholar
Zeigler, L. Harmon, & Dalen, Hendrik van (1971) “Interest Groups in the States,” in Jacob, H. & Vines, K. N., eds., Politics in the American States: A Comparative Analysis. Boston: Little, Brown.Google Scholar

Cases

Florida Industrial Commission v. Manpower of Miami, 91 So. 2d 197 (1956).Google Scholar
Manpower, Inc. of New Jersey v. Richman (Attorney General of New Jersey), Superior Court of New Jersey, Law Division, Essex County, Docket No. L-22576-56 (24 June 1957, unpub.).Google Scholar
Nebraska v. Manpower of Omaha, 73 N.W. 2d 692 (1955).Google Scholar
Olsen v. Nebraska, 313 U.S. 236 (1941).Google Scholar

Statute

Temporary Help Service Firms—Registration and Regulation, New Jersey Laws, ch. 1 (1981).Google Scholar