A vocational witness identifies occupations and claims Job Browser Pro as the source and foundation for job numbers. I check JBP on the fly and the numbers check out as the DOT job estimate. The list of industries includes Temporary Help Services. That is the line of questioning that I will pursue.
Question: Do you agree most of jobs in the occupation you identified are in the Temporary Help Services industry as listed in Job Browser Pro?
Answer: Yes.
Question: Is working for Temporary Help Services sustained employment?
Answer: Yes. These are temp to hire jobs.
Question: What percentage of temporary jobs are temp to hire as opposed to temp to borrow for a short time?
Answer: Oh, I don't know the answer to that question.
That's the scenario. I call it fudge, and not the kind that you can eat. It is sloppy, inexact, unreliable, and it turns out to be wrong. We go to the definition of Temporary Help Services in the 2022 NAICS Manual (OMB 2022).
561320 Temporary Help Services
This industry comprises establishments primarily engaged in supplying workers to clients' businesses for limited periods of time to supplement the working force of the client. The individuals provided are employees of the temporary help services establishment. However, these establishments do not provide direct supervision of their employees at the clients' work sites.
Illustrative Examples:
Help supply services Temporary employment or temporary staffing
Model supply services Manpower pools
Labor (except farm) contractors
(i.e., personnel suppliers)
Cross-References. Establishments primarily engaged in--
• Providing human resources and human resource management services to client businesses and households-- are classified in Industry 561330, Professional Employer Organizations;
• Supplying farm labor--are classified in U.S. Industry 115115, Farm Labor Contractors and Crew Leaders;
• Providing operating staff to perform a combination of services to support operations within a client's facilities--are classified in Industry 561210, Facilities Support Services;
• Providing executive search, recruitment, and placement services--are classified in U.S. Industry 561312, Executive Search Services;
• Listing employment vacancies and in recruiting, referring, or placing applicants for employment--are classified in U.S. Industry 561311, Employment Placement Agencies; and
• Representing models, entertainers, athletes, and other public figures as their agent or manager--are classified in Industry 711410, Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures.
Question: What part of the definition of industry suggests that some, most, or all the jobs in this industry are temp-to-hire?Answer: That's based on my experience.Question: The Commissioner takes administrative notice of County Business Patterns. The NAICS defines the industries used by CBP. Is that your understanding?Answer: I don't know.Question: Do you use County Business Patterns for any purpose either here or in your professional services outside of Social Security?Answer: No.Question: Do you have the vocational handbook published by SSA?Answer: Not with me. It is in my office.
While not a definitive list of job requirements, an ideal VE will have:
• Up-to-date knowledge of, and experience with, industrial and occupational trends and local labor market conditions.• An understanding of how we determine whether a claimant is disabled, especially at steps 4 and 5 of the sequential evaluation process we describe beginning on page 14.• Involvement in or knowledge of vocational counseling and the job placement of adult, handicapped workers into jobs.• Knowledge of, and experience using, vocational reference sources of which the agency has taken administrative notice under 20 CFR 404.1566(d) and 416.966(d), including:• The Dictionary of Occupational Titles (DOT) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO);• County Business Patterns and Census reports published by the Bureau of Census;• The Occupational Outlook Handbook published by the Bureau of Labor Statistics; and• Any occupational analyses prepared for SSA by various state employment agencies.
The vocational witness is unprepared to discuss CBP as required by regulation and the VE Handbook.
Move to strike the witness's testimony. It will be denied. ALJs don't know beans about CBP and think that it does not give national job numbers. That is just uninformed. The counties make up the state and the states make up the nation. If we have all the county job numbers, county-by-county, then we have the national job numbers. CBP reports all that and more.
There is no reason to assume that any discernible number of temporary help services jobs represent temp-to-hire in significant numbers. Move to strike reliance on that testimony relying on jobs identified in Temporary Help Services. It is not defined as temp-to-hire and speculative how many are temp-to-hire. The vocational expert will cling to experience, and I will ask:
What is the reliable methodology that you use to extrapolate your local experience to the national economy?
And finally:
Who do you believe has the greater ability to collect and synthesize data; you or the Census Bureau?
This last question has a variable. Here we are speaking to the NAICS Manual and the Census Bureau's CBP. If our attention were directed at the ORS, OEWS, OOH, or EP, we ask about the Bureau of Labor Statistics. If our attention were focused on the O*NET, we ask about the Employment Training Administration (the same agency that published the DOT). Don't let the vocational witness steal from your client or steal your fee from you. Focus on the first and make good decisions.
___________________________
Suggested Citation:
Lawrence Rohlfing, Speaking of Temporary Help Services, California Social Security Attorney (July 22, 2022) https://californiasocialsecurityattorney.blogspot.com
The author is AV rated for 23 years and listed in Super Lawyers for 14 years.
No comments:
Post a Comment