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20 J.L. Soc'y 247 (2020)
Fissured Opportunity: How Staffing Agencies Stifle Labor Market Competition and Keep Workers "Temp"

handle is hein.journals/jls20 and id is 259 raw text is: 






FISSURED   OPPORTUNITY:


    HOW   STAFFING AGENCIES STIFLE LABOR MARKET
        COMPETITION AND KEEP WORKERS TEMP

                       JANE R. FLANAGANT

                    TABLE   OF  CONTENTS

I. BACKGROUND:  NEVER-NEVER  GIRLS OR A PATH TO
    PERMANENT  EMPLOYMENT      ..................................... 249
II. COMMON RESTRICTIVE COVENANTS   IN STAFFING SERVICES
    CONTRACTS                      .............................................. 253
    A. Restraints on Direct Hiring by Worksite Employers .............. 254
       1. Examples of Common Terms ..................... 254
       2. Analysis of Common Terms ...........  .... ........ 257
   B. Restraints on Hiring Through Third Party Staffing Agencies ... 258
       1. Examples of Common Terms ..................... 258
       2. Analysis of Common Terms ...........  .... ........ 259
    C. Potential Significance of these Restraints. ............... 260
III. LEGAL ANALYSIS      .................................... .....261
   A. State Common Law on Restrictive Covenants ................. 262
   B. State Statutes Limiting Use ofRestrictive Covenants............ 265
   C. State and Federal Antitrust Law..........   ............. 266
   D. State Statutes Regulating Temporary Labor ................... 268
IV. CONCLUSION         ................................. ....... 270
   A. Public and Private Legal Challenges ........................ 270
   B. Regulating Temp Work............................ 271
   C. Research on the Implications of Fissuring for Labor Market
       Competition.      ............................  ...... 271
   D. Best Practices for Responsible Employers .............. 272
   E. Organizing Across Fissures  ..................    ....... 272

   In temp towns, it is not uncommon tofind warehouses with virtually
no employees of their own. Many temp workers say they have worked in
the same factory day in and day out for years. Josd Miguel Rojo, for


247


T The author would like to thank Chris Schwartz for generously sharing his research and
collection of staffing services contracts with me and Gabe Kahn for his research assistance.
Additional thanks to Ben Elga, Laura Padin, and David Seligman for their review and
useful feedback.

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