436-180-0120 Temporary Worker Distinguished from Leased Worker (1) Temporary service providers. A person that provides a worker to a client by contract and for a fee will be considered a temporary service provider if the worker is provided on a temporary basis, subject to the following: (a) “Temporary basis” means the worker was provided to supplement a client’s regular workforce for a special situation, as a student worker, or as a probationary hire as described under ORS 656.850(1)(b). The worker will be considered to be provided on a temporary basis if there is contemporaneous written documentation of the placement; (b) “Contemporaneous written documentation” means documents that are created at the time the temporary service provider and client make the arrangements for placement of the worker. The documents must indicate the expected duration of the placement, and: (A) If the worker was provided to supplement a client’s regular workforce for a special situation, the documentation must describe the special situation. A special situation includes, but is not limited to: (i) An employee absence or leave, from which the employee is expected to return; (ii) A shortage in skilled professional staff, whether licensed or not, for a known duration of time. Supporting documentation may include license information, and must establish whether the worker is provided to supplement or to satisfy a client’s need for the skill; (iii) A seasonal or sporadic increase in workload that requires assistance in addition to the client’s regular workforce. Documentation must establish the nature of the increase in workload; or (iv) A special assignment or project outside of the routine activities of the client’s business, where the worker will be terminated or assigned to another temporary project upon completion. Documentation must describe the project and how it is outside of the routine activities of the client’s business; (B) If the worker is provided and paid through a work experience program, the name of the school or institution and the work experience program; or (C) If the worker is provided as a probationary new hire and the worker has a reasonable expectation of transitioning to permanent employment with the client, evidence that the client established a probationary period in its overall employment selection program before obtaining workers from the person. Evidence may include copies of the client’s written program, or a written agreement between the temporary service provider and the client establishing the probationary period before workers were provided; and (c) Either the person providing the worker or the client must provide the contemporaneous written documentation to the director upon request. If a person fails to provide the contemporaneous written documentation, the director will investigate to determine if the worker was provided on a temporary basis. If the director determines that the worker was provided on other than a temporary basis, the person will be considered a worker leasing company. (2) Persons providing leased and temporary workers. If a person providing workers on both a leased and temporary basis does not maintain the records required under OAR 436-180-0150(2), all workers will be considered to be leased workers. Statutory/Other Authority: ORS 656.726(4) Statutes/Other Implemented: ORS 656.850 History: WCD 7-2018, adopt filed 06/07/2018, effective 07/01/2018