Could you please tell me how many of the jobs you identified for the occupation of small products assembler actually work in the temporary help services industry?
That is the question. If the vocational witness uses Job Browser Pro, the program will answer the question (assuming the VW knows how JBP works). If the vocational witness is not using JBP, that person will give a blank stare, silence over the phone, or have to say that he/she just doesn't know.
The answer matters. For this example, looking at small products assembler I, the answer means the difference between significant and insignificant numbers of jobs. We start with the observations that small product assembler I falls in the production workers, all other (51-9199) classification. The Occupational Outlook Handbook (2003) (and the Employment Projections upon which the OOH is based) describe production workers all other as representing 275,300 jobs in the nation in self-employment and wage and salary employment. The manufacturing sector employs 111,200 production workers. An additional 102,000 jobs work in the administrative and support and waste management and remediation services sector. Almost all of those jobs exist in administrative and support services subsector, 101,300 jobs. The employment services industry group employs 98,400 production workers. The temporary help services sector employs 90,400 of the 102,000 jobs in the administrative and support and waste management and remediation services sector.
The Occupational Employment and Wages (2022) reports 252,660 production workers, all other jobs. The industry that employs the largest number of production workers is ... employment services at 99,840 jobs. Over a third of jobs for production workers exist in this industry.
The OEWS reports that employment services employs 99,840 production workers, all other. Temporary help services employ over 90% of them, 91,950 production workers. Employment services reports all the job numbers for that industry group with an additional note:
Industries within NAICS 561300 - Employment Services
Let's go back to small product assembler. The non-JBP sources are too varied with anecdotal and unsupportable methodologies to even begin to guess. I start with JBP because it is the only published methodology that does not have an apparent conflict with the DOT designation of industry (in the parentheses) or the narrative description of what and where the occupation exists. JBP reports a 2023 job number for small products assembler I of 16,138 full-time jobs. The very long list of industries (58) contains the 56th entry, temporary help services representing 11,593 jobs.
For purposes of discussion, we assume that the industry selections and the DOT assignments within each industry selection are appropriate. The question is simple, do jobs in the temporary help services industry (NAICS 5621320) count at step five of the sequential evaluation process -- the existence of other work that fits the claimant's medical-vocational profile.
We know that residual functional capacity represents the most that a person could do on a sustained basis under SSR 83-10, 96-9p. SSR 96-8p makes clear that sustained employment means regular and continuing, eight hours a day, five days a week, or an equivalent work schedule. Does part-time work count? Only for past relevant work that was done on a part-time basis according to fn. 2. The exceptions to regular and continuing work for part-time work and seasonal work apply to past relevant work under POMS DI 24005.015. Even when the regulations permitted consideration of a capacity to perform part-time work at step five, that permission extended to "reasonably regular part-time work."68 Fed. Reg. 51153, 51158 (Aug. 6, 2003) (deleting “reasonably regular part-time” work from 20 C.F.R. §§ 404.1562, 416.962). Work that is not reasonably regular has never counted at step five of the sequential evaluation process.
The North American Industry Classification System (2022) describes the industries that exist in North America (the United States, Canada, and Mexico). Canada and Mexico use the five-digit system. The US uses the six-digit system to provide additional granular data. There are other differences described in the introduction at page 4.
For purposes of understanding the 11,000+ jobs attributed to small products assembler I in the temporary help services industry, we need to understand that the industry designation means. The first two digits (56) refer to administrate and support and waste management and remediation services, the industry sector. The first three digits (561) refer to administrative and support services), the industry subsector. The first four digits (5613) refers to employment services, the industry group. The five (56132) and six-digit (561320) designations describe temporary help services, the specific industry. NAICS Manual at 61-62. The NAICS Manual differentiates other industries that the supply of its own employees for limited periods of time to supplement the work force of a client's business are classified in Industry 56132, temporary help services. NAICS Manual at 487 (56131 and 561311), 488 (561312). Temporary help services means:
This industry comprises establishments primarily engaged in supplying workers to clients' businesses for limited period of time to supplement the working force of the client. The individuals provided are employees of the temporary help establishment. However, these establishments do not provide direct supervision of their employees at the clients' work sites.
NAICS Manual at 488. Workers employed in this industry must meet the physical and mental demands of multiple clients of their employer. The jobs last for indefinite but "limited periods of time." The temp to hire paradigm is classified under employment placement services (NAICS 561311) and not temporary help services (NAICS 561320).
When the VW explains that the jobs in temporary help services are primarily temp to hire positions, the VW misunderstands or misrepresents the classificatory scheme presented by the NAICS Manual. Working for a limited time as a small products assembler I is not regular and continuing employment under SSR 86-8p. That work does not count at step five of the sequential evaluation process.
Let's hear the witness's analysis.
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Suggested Citation:
Lawrence Rohlfing, Temp to Hire and Temporary Help Services -- There Is a Difference and the Latter Does Not Count for Sustained Employment, California Social Security Attorney (September 7, 2023, revised October 14, 2023) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
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