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The Fourth Circuit Court of Appeals recently ruled that a temporary agency employee could be deemed an employee of the customer company as well as the temporary agency. The Fourth Circuit adopted a hybrid test and set forth nine factors that should be considered to determine if an employee is jointly employed by two or more entities. The nine factors are:

  1. Authority to hire and fire the individual;
  2. Day-to-day supervision of the individual, including employee discipline;
  3. Whether the customer furnishes the equipment used and the place of work;
  4. Possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes;
  5. The length of time during which the individual has worked for the customer;
  6. Whether the customer provides the individual with formal or informal training;
  7. Whether the individual’s duties are akin to the duties of the customer’s employees;
  8. Whether the individual is assigned solely to the customer; and
  9. Whether the parties intended to enter into an employment relationship.

The court made clear that none of the factors are dispositive, but that control is still the “principal guidepost” in making the determination. However, the court noted that the first, second and third factors were the most important in the analysis.

Based on the analysis of the factors provided by the court, prudent employers should note the following:

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