Are temporary staffing agencies or professional employer organizations (PEOs) responsible for making Health Care Expenditures under the HCSO?

Both the client and the temporary staffing agency, professional employer organization (PEO), or similar entity may be considered a Covered Employer under the HCSO, and each Covered Employer shall have an obligation to ensure that the Employer Spending Requirement has been met. Under California law, a person or entity “employs” a worker if the person or entity: (1) exercises control over the worker’s wages, hours or working conditions, (2) permits the worker to work, or (3) engages the worker (i.e., creates a common law employment relationship).

If a temp agency or PEO performs any of these functions, then that entity is considered a “joint employer,” along with the client for whom the employee performs the work. If there is a joint employment relationship, both entities are responsible for the required Health Care Expenditures. Either entity may make the expenditures, but both can be held liable if the expenditures are not made.

The Health Care Expenditure rate is determined by the size of the larger employer. For example: if a temp agency has 200 employees and the employer at the work site has only 30, the Health Care Expenditure rate for large employers applies.