by Maria Moreno
(Mira Loma California)
if my company was to use a temporary agency does my company need to pay over time to the employee from the agency? Is the agency responsible for the overtime.
Maria, Thanks for the question. In California, you are co-employers when you hire a temp through an agency. That means if overtime laws apply to the employee whether they are yours or not the employee needs to be paid in accordance with the law, so to answer your question, yes the employee if they qualify for over time needs to be paid overtime. As the Temp agency is the employer of record, they would have to make sure the temp is paid.
Now as to the second part of your question about whether you pay or the temp agency pays, that is between you and your temp agency. I suspect if you are expecting the temp agency to pay the overtime premium, while you pay just the hourly wage, you may get some resistance. If you push you may also need another temp agency. That's just my opinion. You may have some reason to think your temp agency would be OK with that such as you are already paying such a high premium on the temps already.
A word of caution here, I'm not a lawyer. You may need to seek a lawyer to sort this one out as I don't know the specifics of your agreement. Either way, the important thing here is the employee must be paid in accordance with California state law. Since the Temp Agency is the employer of record they should do that. As you are the co-employer, you may want to make sure that they are in fact doing that.
As far as the payments to the temp agency, that's between the two of you and the specifics of your contract.