How Long Can You Keep an Employee in a “Temporary” Role….

How Long Can You Keep an Employee in a “Temporary” Role….

by Jeanne Knutzen | June 21, 2019

0 Author-Jeanne, Blog, Featured in Newsletter, Flexible Staffing Strategies, INFO AND RESOURCES FOR EMPLOYERS, Legal Issues - Staffing, LOCAL NEWS AND TRENDS - EMPLOYMENT, STAFFING, Temporary Staffing.Best Practices, What's New in Staffing? get connected

PACE Temp EmployeesMyths.  Truths.  Misconceptions About “Length of Assignment” for Temporary Employees

Conversations about the legal length of a temporary assignment has been around for a long time.  In December 2000, the now infamous Microsoft 97 million $ settlement  awarded 97 million dollars to temporary workers who were re-classified as  core (common law) employees (instead of temps).  That re-class ruling resulted in 8-12 thousand Microsoft “temps” becoming “benefit eligible”, resulting in a pretty hefty obligation even for a company like Microsoft.

Unfortunately  this settlement catapulted the issue of assignment length into a confusing period for companies who were large users of temporary employees.   Based on some common misunderstandings of what created the MS settlement,  many employers created internal policies that limited the length of time an employee could be a “temp” believing that by doing so they were minimizing their exposure to “re-classification” issues.

Even the American Staffing Association (ASA) weighed  in on the issue by taking up the concerns of both the employer and their interim employees who were often negatively impacted by an arbitrary assignment ending.  In a series of white papers, ASA challenged  the employer community regarding their assignment limit policies claiming  that “the length of a temporary assignment” is only one, of multiple factors, important to establishing the employee- employer status and does not in and of itself mitigate the risk of misclassification.  They wisely noted that other components of the employee/employer relationship were, in fact, equally if not more important.     

What is the status of the length of assignment issue today?

As the dust settled it became clear that the truth surrounding the MS settlement was far different than the initial headlines.    And even though the arguments of the ASA prevailed, the wake of the MS lawsuit still exists.  We are still being asked by employers  how long they can keep a temporary employee without putting themselves at risk.  And our temporary employees are still asking how long their employer can keep them in a temporary role without breaking the law.

What are employers doing today to make sure they are protected from unexpected liabilities related to how they use and manage temps? 

    #1.  Most employers are now obtaining their non – core, interim, contract or temp employees thru third party staffing agencies rather than hiring them directly.    

Many analysts believe that had MS obtained all of their temporary workers at the time of the lawsuit thru a third party employer, instead of hiring many of their temporary workers directly classified as 1099s, it is possible that some of the mis-classification claims could have been avoided.

The most prevalent “safe harbor” policy that large companies have implement forbid hiring managers from hiring a worker classified as a 1099…..requiring them to use a staffing agency to on board and pay inteirm workers, even those workers were sourced internally, not by the staffing agency per se. They do this to avoid the scenario where an employer classifies  a worker as a 1099 – “self employed”- and the IRS later refutes that claim, subjecting the employer to back taxes, fines, and penalties.   Employers want the peace of mind that comes from  knowing that the  applicable wages, payroll taxes and benefits costs are being calculated and paid by an employer other than themselves.

Many local staffing companies, PACE included, have created low cost “payroll service” packages for employers who have a need for third party employer services for interim workers they have recruited directly.  (See PACE’s Employer of Record service option) 

#2.  Employers are writing their key benefit plans to specifically exclude third party (i.e. staffing firm) employees. 

In 1999, Microsoft didn’t have any carve outs in their benefit contracts, and had to learn the hard way that easiest way to protect themselves from unanticipated benefit costs is to specifically exclude workers who are the employees of third party employers.

#3.   Employers are including information about how to manage workers from third party employers as part of supervisory training.   

The IRS is still using its infamous 20 point test to determine the employer relationship.  To make sure that the employer responsibility stays with the staffing agency and doesn’t  default back to the employer under audit, many employers are training their supervisors on temp management 101…

    • To limit their communications with temporary employees on any issue related to pay, length of assignment, benefit eligibility, employment status or work schedules, etc.
    • To allow,  and in some cases require,  representatives from their staffing vendors to be on site, communicating directly with their employees,  as needed.
    • To provide feedback on performance thru the employee’s staffing vendors, not directly.

If you are an employer and would like some training for your supervisors on how to legally and operationally optimize the employer services of a third party staffing agency, give us a call at 425-637-3312!

#4.  Most staffing agencies are now providing their clients with contracts or written agreements that spell out their duties as “employer”.  These agreements typically include the staffing agencies responsibility to….

  • Recruit, screen and evaluate employees to be placed on assignment
  • Determine employee pay rates, benefits and expense reimbursements
  • Hire, fire, and assign employees
  • Handle employee complaints and concerns
  • Pay worker, calculate and pay taxes, and distribute pay check

Getting these types of agreements or contracts in writing, makes it clear who is responsible to act as the “employer of record”.  It also can protects employers from unexpected liabilities resulting from workplace accidents or claims of discrimination.

Keep in mind that while legal concerns regarding how long a temp can remain on assignment have dissipated, there are still situations where internal “length of assignment” policies might be needed.  For example….  

You may want to limit length of assignment in order to protect your Intellectual Property…   

In 2016, Microsoft established a new set of “assignment limit” rules, based not on the risk of mis- classification or co-employment, but on their concerns about the integrity and security of their intellectual property.  Because they were uncomfortable allowing a temporary or contract worker to have long-term access to their proprietary information and systems,  they decided to place limits on the number of months an employee could access their systems without a break in service.  They decided  that after 18 months a temporary or contract worker needed to be removed from their assignment, forcing an arbitrary lay off of any contractors reaching that benchmark.

We are yet to see if MS can effectively enforce this policy without exception as we know first hand the negative impact of losing a valued worker – even if the are not an employee hired directly.

You may want to limit length of assignment in order to optimize Workforce Productivity and/or Morale… 

While higher wage temporary or contract workers  tend to prefer “longer term assignments”, many lower wage temporary workers consider themselves negatively impacted when asked to remain as temporary employees for long periods of time without being converted to a regular hire.   The impact to productivity and morale  is often highly visible when temporary workers are asked to work side by side core employees doing the same or similar work.

For similar reasons, in those situations where an employer regularly hires members of its temporary workforce, there is risk attached to keeping the temporary employee in the workforce once they know they will not be hired.

Most of our clients who regularly hire our temporary employees have rules whereby an employee will either be hired or removed from their assignment after a defined period.

Structured policies about how long an employee can work in your environmdent as a “temp” can be used to avoid the risk of Discrimination Claims…

The longer a “temp” is in your workforce, and the fewer policies you have to guide decisions your managers use to either end or extend assignments, the more opportunity there is for claims of “disparate treatment”.

Making “length of assignment” a matter of company policy rather than a decision left up to the discretion of an individual manager or supervisor,  mitigates the risk of an uninvited claim of disparate treatment.   At the same time, an across the board “length of assignment” policy, can reduce the resources manager’s have available to them to achieve important business goals.   

Our recruiting team  rfegularly provides employees for assignments intended to last as little as two days to multiple years and does so seamlessly, based on the employer’s internal policies and our assessment of our employee’s motivations for working.  While we will provide information on the operational risks an employer might face by either limiting or extending assignment lengths, in the end, it is a decision that is made by both the employer and the employee.  In reality, once the original agreement re: “length of assignment” has been satisfied, an employer can still provide an employee with the opportunity to extend their assignment and the employee can then decide if they want to accept the employer’s offer.  The law plays no role in those decisions for either party,  although a company’s internal policies might.   

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If you’d like help with your next temporary staffing project or to learn more about how optimize your use of temporary employees,  give our Partner Services and Solutions a call at 425-637-3312 or e mail us at partnerservices@pacestaffing.com

PACE Staffing Network is one of the Puget Sound’s premier staffing /recruiting agencies and has been helping Northwest employers find and hire employees based on the “right fit” for over 40 years.

A  4 time winner of the coveted “Best in Staffing” designation , PACE is ranked in the top 2% of staffing agencies nationwide based on annual surveys of customer satisfaction.

PACE services include temporary and contract staffing, temp to hire auditions, direct hire professional recruiting services, Employer of Record (payroll) services, and a large menu of candidate assessment services our clients can purchase a la carte.

To learn more about how partnering with PACE will make a difference to how you find and hire employees,  contact our Partner Services and Solutions team at 425-637-3312, e mail us at partnerservices@pacestaffing.com or visit our website at www. pacestaffing.com/employers.

 

 

 

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