Co-employment is an important issue for any company using long-term contractors.1 In 2000, Microsoft’s $97 million settlement for benefits liability to the contract workers who provided services from 1987 to 2000 raised co-employment awareness nationally. To limit exposure to co-employment benefits risk, companies have enacted various policies for using contractors such as placing time limits on their use, rotating staffing firms, etc.
However, these policies don’t get to the crux of the co-employment issue, but rather, underserve the companies that need long term contractors. A solid understanding of both co-employment and how to work with a staffing firm to best handle this issue is an important step in managing risk.
This paper will address these points by defining co-employment and co-employment liability as they relate to benefits, discussing the implications of the Microsoft case, and suggesting ways to lessen co- employment risk when using a staffing agency.
Managing Co-Employment Risk When Using a Staffing Agency
Prepared by Aquent
compliments of 877 2 AQUENT , aquent.com
Please note: The information contained in this white paper is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
Co-employment is defined as “a relationship between two or more employers in which each has actual or potential legal rights and duties with respect to the same employee.”2 In a single employer/ employee relationship, the employer bears certain responsibilities to employees, including paying wages, overtime pay, and taxes; providing worker’s compensation, benefit, and pension plans; and ensuring civil rights compliance, appropriate labor/management relations, and a safe work site. In a co- employment situation, these responsibilities may be shared.
Co-employment is inherent in the staffing firm/client relationship; since both have sufficient contact with an assigned employee, each company will be viewed as an employer. Generally, in this sort of relationship, the staffing firm is viewed as the “primary employer” and bears most of the responsibility for the employee. The following chart lists the duties of each.3
The Staffing Company
Pays the employee
Supervises and directs day-to-day work
Co-employment: a relationship between two or more employers in which each has actual or potential legal rights and duties with respect to the same employee.
Co-employment issues arise when the client company extends its control beyond the staffing firm/client division of tasks and takes on the role of the primary employer, as specified in the “common law” test.4 The IRS and many state statutes use the “20-factor” or the “common law” test, a checklist of 20 criteria, to identify the degrees of behavioral and financial control a company has over an individual to determine employment status.5 If a contractor meets the majority of the criteria in the common law test and the client is found to be the primary employer, the contractor becomes their “common law employee” and the client will bear greater liability for that contractor. This was the issue in the Microsoft case.
Common law test: a checklist of 20 criteria used by the IRS to determine employment status by identifying degrees of behavioral and financial control a company has over an individual. A company must include common law employees in its employee population to qualify for certain tax breaks in a qualified benefits plan.
The Microsoft Case
Vizcaino v. Microsoft involved individuals who performed services for Microsoft between 1987 and 2000. Most of these were long-term contractors—both independent contractors (ICs) and employees of staffing firms—who performed the same or similar job duties for the same supervisors as Microsoft employees, and who met many of the criteria for employee status as described in the common law test.6
The workers filed suit in 1993, claiming benefits from Microsoft on the grounds that 1) they were really the company's common law employees and 2) the IRS had reclassified them as employees, so they were thus entitled to participate in Microsoft’s stock purchase plan (SPP), its 401(k) plan, and other benefit plans. When a company has a qualified benefits plan,7 it must include common-law employees in its employee population to qualify for certain tax breaks, and those common law employees are then covered by the qualified benefits plan. The 9th U.S. Circuit Court of Appeals in San Francisco sided with the workers, and Microsoft agreed to pay $97 million to settle the lawsuit.
The settlement was based on a measurement of what would have been the workers’ benefits under the company’s discount SPP, a component of the total benefits package. The settlement did not provide for a 401(k) plan or other benefits because the wording of these plans expressly excluded ICs and staffing firm employees from participating in these plans. The SPP was valid because it was a qualified plan and therefore extendable to all employees, including common-law employees.
Other companies have faced lawsuits from ICs and staffing firm employees claiming entitlement to participate in company benefit plans in the wake of the Microsoft settlement.
The lessons learned from the Microsoft case are:
- Companies should clearly set forth in their contracts with ICs and with staffing agencies that the ICs and the agencies’ employees are excluded from participation in company benefit plans.
- Company benefit plans and benefit documentation should explicitly exclude ICs and staffing firm employees from eligibility to participate in benefit plans.8
- Companies should avoid controlling the manner and hours of performance put forth by ICs and employees of staffing firms so that these individuals do not become common law employees.
- Companies should consider offering only nonqualified SPPs.9
Companies may lessen the risk of a “Microsoft problem” by offering a nonqualified stock purchase plan, by including clear language in all of its benefit plans excluding ICs and staffing firm employees, and by avoiding control of the performance of such persons.
Managing Co-Employment Risk
In an effort to avoid the risk of co-employment, some companies limit the length of service of a contract worker to under 1,500 hours over 52 weeks. Some of these policies are based on the belief that such workers are automatically eligible for coverage under the company’s plan after a certain period of time, which is not true. In fact, assignment limits may even carry some risk of violating ERISA if they are construed as an unlawful effort to prevent workers from reaching the hours needed for plan participation.10 In addition, “churning”11 workers is inefficient and not a good solution for companies with long-term temporary staffing needs.
Limiting a contract worker’s hours to avoid benefits liability is not a good solution for companies with long term temporary staffing needs.
So, what should a company do to minimize co-employment risk? Here are some recommendations:
- Cover your legal bases. Review—with experts—agreements with all staffing agencies and independent consultants to establish the boundaries of the relationship, responsibilities, liabilities, etc.
- Have contract workers sign contracts and waivers. It’s a good idea to have all contract workers sign a document stating that they are employees of the staffing firm and that they waive any claim to compensation or benefits from the client. Legal counsel should be consulted when drafting these agreements because the language of the contracts and waivers needs to be specific to the client and the benefits it provides.
- Have company benefit plans explicitly exclude contract workers, or have nonqualified plans. The IRS upheld that companies can use exclusionary language in their benefit plans as long as it is non-discriminatory. Therefore, companies can explicitly exclude temporary staff and independent contractors in their benefits wording. Alternatively, companies can have components of their benefits plans, such as SPPs, that are nonqualified. All wording, however, should be reviewed by legal counsel.
- Work with reputable staffing firms. Ensure that the staffing firm plays an active role in maintaining primary employer status. Validate that the firm is financially sound, up to date with all their workers’ compensation and unemployment coverage, and knowledgeable about all aspects of its business.
- Have the staffing company control certain tasks and maintain its employer status. While client day-to-day supervision may be unavoidable in the staffing firm/client relationship, it should be minimized when possible. Thus, in addition to issuing paychecks, withholding employment taxes, and providing required insurance, the staffing firm should handle the following:
- Assign and reassign
- Set pay rates and benefits
- Negotiate with clients regarding the nature of the work, the hours, duration of the assignment, and working conditions
- Maintain general supervisory responsibilities regarding performance, discipline, and complaints
- Evaluate performance and provide counseling
- Provide general training 12
- Have the staffing firm provide on-site supervision when hiring a large number of contractors for an extended period. It is natural for supervisory lines of control to become blurred on long-term assignments. Contract workers are more inclined to get training through the client, attend status meetings, and so on, and supervisors are more likely to give direct feedback, administer performance reviews, etc. To minimize this risk, the client should have the staffing firm provide a project manager or supervisor on site to supervise the contract workers. This drastically reduces co-employment risk, as it reinforces that the staffing firm is the primary employer, and it is a better option than limiting the contract workers’ tenure.13
- Decrease Co-Employment Risk by:
- Covering your legal bases
- Working with reputable staffing firms
- Having staffing firm provide on-site supervision, especially if you work with a large number of contract workers from that agency
- Minimizing contact with contract workers wherever possible and having them take up issues directly with staffing agency
- Avoiding discriminatory conduct
- Maintaining a safe work site for all employees
By utilizing these guidelines, companies can minimize their exposure to co-employment risks. Co-employment is a natural element of the staffing firm/client relationship, and by managing it effectively and proactively, companies can maintain their long-term contractors and reap the benefits of a flexible work force.
Aquent is the world’s largest marketing, creative, and interactive staffing firm, with 74 offices in 19 countries. We’re a solid, fully-insured, privately-owned company with revenues of more than $460 million. Aquent can help you avoid co-employment risk in several ways.
- Aquent takes great care to maintain its primary employer status. We take significant measures to ensure that we maximize behavioral and financial control over our talent to limit your co employment risk. To do so, we provide the following services:
- Rigorous screening. All of our agents are well-trained in Aquent’s qualification process, which includes behavioral interviewing, skills assessments based on real-world projects, and thorough reference checking.
- Assigning the right talent for the job. Our agents strive to understand both your project and cultural needs in order to make the most appropriate match. We have a 110% guarantee if you are not satisfied.
- Financial control and thorough recordkeeping. We handle all financial matters by taking care of payroll, taxes, reimbursable expenditures, and more. We also maintain extensive employee profiles as part of our employee records management system.
- Proactive management of talent performance and career planning. We provide constructive feedback to talent, manage performance issues, and remove and reassign talent if necessary. We handle questions and concerns from the talent and help them manage their career goals.
- Benefits for talent. We provide and contribute to a comprehensive benefits plan that includes 401(k); health, dental, and vision insurance; holiday pay; vacation pay; and more.
We provide project outsourcing for clients who want to contract out all or part of their creative services, marketing, or content development projects. Our team scopes the job, designs the solution, manages the work, and delivers according to client specifications. Work can be done on- or off-site, or even offshore, depending on your needs. In essence, clients enjoy the benefits of a design studio or ad agency without the associated costs or long-term commitment.
Aquent is committed to partnering with our clients to manage co employment risk. If you have any questions about our services, please contact an Aquent agent at an office near you—877 2 AQUENT (877 227 8368).
Appendix A: IRS 20 Factors Checklist
The IRS has a checklist of 20 factors to determine worker status. Often referred to as the “common law” test of employment, this test establishes the degree of direction and control a company has over workers. To help clarify the IRS checklist, here are 20 questions to ask yourself when attempting to determine whether an individual is an employee or a contract worker.
20 Factors for Determining Worker Status
- Instructions. Who gives them, and must the worker obey them? A worker who must obey company instructions about how to perform the job is usually determined to be an employee of the company.
- Training. Who trains the employee? An independent contractor comes to a company fully trained.
- Integration. How integrated is the employee’s work with the operations of the company? The closer the relationship between the work of the company and the work of the worker, the more likely the worker is an employee.
- Services Rendered Personally. Does the job need to be performed by a specific worker? If the company demands that services be performed personally by the worker, this shows control by the company over the worker, which makes it more likely that the worker is an employee.
- Hiring, Supervising, and Paying Assistants. Who hires, supervises, and pays a worker’s assistants? If a company hires, supervises, and pays a worker’s assistants, this also shows company control, making the worker most likely an employee.
- Continuing Relationship. Does a continuing relationship exist between the worker and the company? A continuing relationship between worker and company tends to show an employer/ employee relationship.
- Set Hours of Work. Is the worker required to work set hours? Independent contractors have the freedom to plan their own work day.
- Full-time Work. Is the worker required to work full time? An independent contractor should be free to accept or reject a job offered by the company.
- Place of Business. Does work need to be done on the premises? An independent contractor should possess his or her own place of business separate from the company.
- Work Schedule. Does the worker need to follow certain established routines and schedules? An independent contractor will set his or her own work schedule.
- Reports. Is the worker required to submit reports, and if so, to whom? Employees are often required by employers to turn in reports, a practice that is viewed by the IRS as evidence of control.
- Method of Payment. Is the employee paid by the hour, week, month, or in a lump sum? Payment to independent contractors should be by the job, rather than by the day or by the hour. Managing Co-Employment Risk When Using a Staffing Agency : Appendix A : Page 11
- Business/Travel Expenses. Who pays for any travel expenses? An independent contractor should pay for all of his or her own expenses.
- Furnishing Tools, Equipment, and Materials. Who covers the cost of a worker’s tools, materials, or equipment? If a company covers the cost of a worker’s tools, materials, or equipment, independent contractor status is weakened.
- Significant Investment. What degree of investment does the worker have in his or her own business? The larger the worker’s investment in his or her own business, the more likely the IRS will accept independent contractor status.
- Realization of Profit or Loss. Does the worker bear profit or loss responsibility? An independent contractor should be capable of either realizing a profit or suffering a loss.
- Working for More Than One Company. Does the worker have a diverse client base? Independent contractor status is strengthened when a worker has a diverse and significant client base. However, a worker can perform services for several companies and still be classified as an employee at one or all of them.
- Making Services Available to the General Public. Does the worker make himself or herself available for other jobs? An independent contractor’s name should be advertised or held out to the general public as being in business for himself or herself.
- Right to Discharge. Who holds this right, and is there a notice requirement? While an employer may discharge an employee, parties to an independent contractor agreement typically have an obligation to terminate their contract according to a notice requirement.
- Right to Quit. Can the worker terminate without incurring liability? If a worker can terminate employment with a company at any time without incurring liability, it suggests an employee-at- will relationship. An independent contractor, on the other hand, cannot simply walk away from a contractual relationship with a company.
Source: CCH Incorporated, as found on http://www.workforce.com/archive/feature/22/14/96/224209.php?ht= with slight modifications
Appendix B: Employee or Independent Contractor?
The following article provides further clarification on how the Internal Revenue Service (IRS) interprets the 20 Factors in behavior control and financial control.
Employee or Independent Contractor?
An Explanation from the IRS
To determine whether an individual is an employee or an independent contractor under common law, the relationship between the worker and the business must be examined. All evidence of both control and independence must be considered.
In any employee/independent contractor determination, all information that provides evidence of the degree of control and the degree of independence must be considered. Facts that provide evidence of the degree of independence fall into three categories: behavioral control, financial control, and the type of relationship between the parties.
1) Behavioral Control
Facts that show whether the business has a right to direct and control how the worker does the task for which the worker is hired include:
- The type and degree of instructions the business gives the worker. An employee is generally subject to the business’s instructions about when, where, and how to work. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to direct how the work results are achieved.
- The type and degree of training the business gives the worker. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods.
2) Financial Control
Facts that show whether the business has a right to control the business aspects of the worker’s job include:
- The extent to which the worker has unreimbursed business expenses. Independent contractors are more likely to have unreimbursed expenses than employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially significant. However, employees may also incur unreimbursed expenses in connection with the services they perform for their business.
- The extent of the worker’s investment. An independent contractor often has an investment in the facilities that he or she uses in performing services for someone else. However, an investment is not required.
- The extent to which the worker makes services available to the relevant market.
- How the business pays the worker. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job. However, it is common in some professions, such as law, to pay independent contractors hourly.
- The extent to which the worker can realize a profit or incur a loss.
3) Type of Relationship of the Parties
Facts that show the parties’ type of relationship include:
- Written contracts describing the relationship that the parties intended to create.
- Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay.
- The permanency of the relationship. If you engage a worker with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that your intent was to create an employer/employee relationship.
- The extent to which services performed by the worker are a key aspect of the regular business of the company. If a worker provides services that are a key aspect of your regular business activity, it is more likely that you’ll have the right to direct and control his or her activities. For example, if a law firm hires an attorney, it is likely to present the attorney’s work as its own and would have the right to control or direct that work. This would indicate an employer/employee relationship.
If you want the IRS to determine whether a worker is an employee, file Form SS-8 Determination of Employee Work Status for Purposes of Federal Employment Taxes and Income Tax Withholding with the IRS.
Source: IRS, Workforce Extra, December 1998, pp. 12-13.
Appendix C: Additional Resources
For more information regarding co-employment and other HR issues, refer to the following:
Co-Employment: Employer Liability Issues in Third-Party Staffing Arrangements (Sixth Edition) by Edward A. Lenz. Published by the American Staffing Association, 2000.
The facts on this important and complex issue and how it affects staffing businesses. Includes detailed discussions on workers’ compensation, taxes, ADA, OSHA, etc.
The American Staffing Association’s website contains useful information on staffing issues, including different employment options, such as outsourcing that companies might consider. Its search function can help you find more articles on co-employment and other HR-related issues.
CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care, and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, on CD, and online.
CCH Incorporated. “Keeping Independent Contractor Status Intact—The 20 Factors.” Workforce: 3pp. Online. Internet. 22 February 2001. Available: http://www.workforce.com/archive/ feature/22/14/96/224209.php?ht=.
IRS. “Employer or Independent Contractor? An Explanation from the IRS.” Workforce Extra (December 1998): 5pp. Online. Internet. 22 February 2001.
Lenz, Edward A. Assignment Limits and Client Concerns about Benefits Liability. ASA Issue Paper, July, 2006, www.americanstaffing.net.
—. Co-Employment: Employer Liability Issues in Third-Party Staffing Arrangements. 6th Ed. Alexandria, VA: American Staffing Association, 2007.
Style, Robert, Esq. “Hints for Avoiding Co-Employment Claims.” Workforce: 2pp. Online. Internet. 22 February 2001. Available: http://www.workforce.com/archive/feature/22/14/96/224108.php?ht=.
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Boston, MA 02116
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1 By “contract workers” or “contractors,” we are referring to “temporary workers,” “temps,” and “freelancers” who work through a staffing firm.
2 As defined in Edward A. Lenz’s Benefits & Compensation Solutions, September 1995.
3 Lenz, Edward A. and Dawn R. Greco, Co-Employment: Employer Liability Issues in Third-Party Staffing Arrangements (Sixth Edition), Alexandria, VA: American Staffing Association, 2007, p.19.
4 This paper discusses the common law test, or 20-factor test, used by the IRS. Not all state statutes adopt this test. Different tests may determine co employment liability or obligations under varying state laws, such as state workers’ compensation, unemployment benefits, and wage and hour laws.
5 Appendix A lists the 20 factors that the IRS uses to determine worker status.
6 The two classes of workers were 1) those who worked directly for Microsoft from 1987 to 1990 as independent contractors (ICs) and 2) those who were employed by staffing firms after the IRS reclassified them as Microsoft employees for tax purposes in 1990 (Lenz, p. 39).
7 A company can qualify its benefit plans—e.g., its pension plans (401(k) plans, etc.—to get certain tax benefits if it can prove that it is allocating benefits fairly (i.e., don’t discriminate in favor of high-paid employees). These are called “qualified plans.” To qualify, a business needs to pass a “coverage test” where it proves that it is providing sufficient benefits to a given percentage of low-paid employees. The Internal Revenue Code 414 states that “leased employees” (see Definitions in Appendix A) must be included in the employee population of the coverage tests.
8 Both ERISA and TAM permit exclusionary language in a benefits program as long as it is not discriminatory.
9 This is because the IRS rules applicable to those plans require that virtually all employees be covered.
10 (Lenz, p. 44). Limiting a contract worker’s hours to avoid benefits liability is not a good solution for companies with long term temporary staffing needs.
11 “Churning” is when a company hires a contract worker for a limited period and then hires another to take his or her place.
12 Work-site-specific orientation and training should be done by the client.
13 “Merely providing nominal supervision...by designating one of the workers assigned as the supervisor will not negate the customer’s co-employer status” (Lenz, p. 86). As such, the company should make sure that this on-site project manager/supervisor signs an agreement that states that he or she is an employee of the staffing firm who is acting on behalf of the staffing firm to monitor and supervise the other staffing firm employees, and that he or she waives any rights to benefits from the client. Legal counsel should be consulted when drafting this document.
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Can They Solve Your Temporary Crisis?
by David T. Barton and C. Christine Burns
Temporary or leased employees now make up four percent of the Arizona workforce.1 For the past several years, temporary employment, the growth industry of the 1990s, has far outstripped traditional or "permanent" employment.2 In fact, Arizonas largest employer industry is currently the personnel supply industry, employing more than twice as many individuals as the states second-largest employer industry, state government.3
For lawyers and law firms, temporary or leased employees (including temporary lawyers) may fulfill a variety of important functions. However, in addition to the concerns that are always present with the use of temporary employees, there are some caveats that are unique to law firms. This article discusses legal issues involving temporary and leased employees, the advantages and disadvantages of using temporary legal employees, the concerns unique to law firms, and suggestions on how to minimize the risks created by temporary or leased employees.
The term "temporary" or "leased employee" has been applied to a number of employer/employee relationships including temporary employees, leased employees, loaned employees, part-time employees, seasonal employees, independent contractors, self-employed workers and casual employees. This article will focus on employees who are hired and paid by one party and who work for another. This group includes leased employees, loaned employees and temporary employees.4 For purposes of this article, the entity that supplies employees to the workforce will be known as the "supplier employer," the entity for whom the work is performed will be identified as the "customer employer," and the worker will be referred to as the "temporary employee."
Although each supplier employer will have its own individual contract, the typical temporary employee contract places the burden of withholding and payroll taxes, workers compensation insurance, unemployment insurance and employee benefits on the supplier rather than the customer employer. Additionally, the supplier employer may be contractually responsible for complying with all laws regarding recruiting, interviewing, testing, hiring, disciplining and terminating employees. Typically, the customer employer will be responsible for protecting its intellectual property rights and its confidential and proprietary information.
The primary concern for customer employers is liability. There are several state and federal statutes, as well as common law theories, that can create liability if an employer/employee relationship is formed. The key question in determining liability is whether the customer or the supplier is the "employer" of the temporary employee. Although the law is unsettled on this issue, courts generally apply common law tests to determine whether the supplier employer, customer employer or both are "employers" under the various employment laws.5 These tests are generally the same tests used to determine independent contractor status6 and the focal point of these tests is control.7 The trend, it appears, is to find that the customer employer and the supplier employer are joint employers.
The customer and supplier both may be considered employers under the Arizona Workers Compensation Act.8 The Arizona Court of Appeals has held that the exclusive remedy provision of the Act barred a temporary employee from suing a customer employer.9 Indeed, Arizona courts also have held that the customer employer can be exclusively responsible for maintaining workers compensation coverage for temporary employees.10
Under the Fair Labor Standards Act (FLSA),11 the Department of Labor often seeks to find both the supplier employer and the customer employer jointly liable for complying with the FLSAs minimum wage, overtime, equal pay, child labor and recordkeeping requirements.12 This is because the FLSA broadly defines "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee."13 The Department of Labor has codified its joint employer doctrine at 29 C.F.R. §791.2.
Under the National Labor Relations Act, the trend also has been to find joint employer status between the customer and supplier employers.14 There are, however, exceptions in cases where the customer employer does not provide daily supervision of temporary employees.15 The National Labor Relations Board also takes the position that truly temporary employees, or employees of a joint employer, should not normally be included in the same bargaining unit as the customers "permanent" employees, or employees of a single employer.16
Customer employers often believe that because they do not hire, fire, or directly pay temporary employees, they have no equal employment opportunity obligations toward those workers. However, new guidelines issued by the EEOC make it clear that both the supplier and customer employers may be liable for discrimination as to temporary employees.17 Thus, both the supplier and the customer employer should comply with federal anti-discrimination statutes, such as Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.
Arizona courts also have held customer employers liable for discrimination under the Arizona Civil Rights Act.18 Supplier employers also should remember they have an extra obligation to ensure that they do not supply employees to customers that routinely engage in discrimination against temporary employees.19
The Internal Revenue Code (IRC) defines "employer" as the "person for whom an individual performs or performed any service"20 unless that person does not have control of the payment of wages, in which case the "person having control of the payment of...wages" is the "employer."21 Using this definition, the IRS has taken the position that both the supplier employer and the customer employer may be considered the "employer" for payroll tax purposes. Recent decisions indicate that if the supplier employer defaults on its payroll tax or withholding obligations, the customer employer may be liable for those obligations concerning its temporary workforce. This is true even if the customer employer has remitted the taxes to the supplier employer for payment to the IRS.22
The Federal Insurance Contributors Act (FICA) and Federal Unemployment Tax Act (FUTA) define employee as "any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee..."23 Thus, both the customer and the supplier employer could be liable for FICA and FUTA taxes if they exercise sufficient control over the temporary employee.24
Although no employer is legally required to provide benefit plans to its employees, the Employer Retirement Income Security Act of 1974 (ERISA) governs employee benefit plans if they exist. A recent case from the 9th Circuit demonstrates why plan administrators should be careful about denying ERISA benefits to temporary employees. If a qualified benefit plan provides benefits to all "employees," temporary employees could be eligible to participate in the plan if their relationship with the customer employer satisfies the common law test for an employer-employee relationship.25 This is true even if the agreement between the employee and employer provides that no employer-employee relationship is intended or created.26
The Immigration Reform and Control Act places the burden of verifying an employees eligibility for employment upon the supplier employer. Thus, customer employers generally do not have an obligation to verify the employment status of their temporary employees unless the customer employer knows the employee is not eligible to be employed in the United States.27
In short, for purposes of workers compensation, wage and hour, union organizing, anti-discrimination, and tax laws, there are instances where both the supplier and the customer employer will be jointly liable for employment obligations. However, for immigration purposes, the supplier employer likely will not have any liability.
Temporary Employees in the Legal Profession
The growth of temporary employees in the workforce at large has been mirrored by similar growth in the legal profession. Lawyers and law firms are increasingly turning to temporary staff for support services and to supply needed expertise. The demand is not only for secretarial, clerical and paralegal support, but temporary attorney services as well.28
Temporary employees provide several significant advantages to the legal profession. For instance, temporary employees may be more flexible in the assignments and work hours they are willing to accept. Temporary employees also understand that the work project or assignment is "temporary", and in many instances they do not want long-term or permanent employment. Temporary employees also may bring a degree of experience or expertise to the customer employer that cannot easily be obtained in the general workforce. For these reasons, if large volumes of documents must be reviewed, or if a case involving a particular specialty comes into the office, a law firm may turn to temporary staffing agencies to meet the particular needs of a client without having to hire permanent employees.
Anecdotal evidence suggests that cost savings may be the biggest reason for hiring temporary legal help. Not only does a temporary attorney come without the usual expenses associated with recruitment, but the hourly rate for temporary legal help is often much less than market rate. Temporary attorneys can often be obtained for $40 to $90 per hour. Engaging outside counsel is much more expensive. When existing legal staff is temporarily overworked, temporary attorneys may be the most economical solution.
Temporary legal staff also provide tax savings. A typical contract between a supplier employer and a customer employer places the burden of withholding and payroll taxes, workers compensation insurance, unemployment insurance, and employee benefits on the supplier employer. Not only does this directly alleviate administrative costs, but it can actually save the customer employer money by not having to make FICA contributions and not having to pay policy dues for workers compensation.
Temporary lawyers also come with a unique blend of problems. The most obvious are the potential conflicts that can arise when a contract or temporary attorney works for several different law firms. Reputable suppliers of temporary legal staff may perform conflict checks, but it would be good practice for any customer employer to inquire concerning the temporary lawyers former places of employment and any matters on which he or she may have worked. Other proactive measures should also be taken to prevent conflicts and protect confidentiality. The State Bar of Arizona Committee on Rules of Professional Conduct recently opined that a temporary attorney should be considered a "full associate" of each employing firm for conflicts and confidentiality purposes unless: (1) there is an agreement that clearly limits the scope of the attorneys work to specific projects or clients; and (2) appropriate screening devices are put in place to prevent the temporary attorney from having access to all of the firms files.29
There has been some controversy over the question of whether the collection of wages for a temporary attorney by a supplier employer creates a fee splitting problem, prohibited by the ethical rules. This issue has largely been resolved by the American Bar Associations Committee on Ethics, which opined that such a practice is not prohibited by the Rules.30
A troubling issue regarding the employment of temporary legal staff is confidentiality. Although lawyers are bound by the rules of ethics to keep matters strictly confidential, legal staff are under no similar ethical obligation. For this reason, it is quite possible that a temporary paralegal or legal secretary who does work for a number of law firms in a community could pass around confidential information. This difficult situation can be remedied to some degree by confidentiality agreements and/or by policies and procedures implemented by reputable supplier employers.
The specter of malpractice litigation also may inhibit temporary employment of legal staff. Most loss prevention policies cover only the firm and its regular employees. Temporary employees are generally not covered. This is problematic not only for the temporary employee, but also for the client who may suffer a loss. The question of insurance is one that should be discussed thoroughly with the supplier employer, the temporary employee, the customer employers carrier and the client before the temporary employee begins work. There should be a clear written under-standing of who will be responsible in the event of a malpractice lawsuit.
Finally, law firms or lawyers employing temporary staff should consider consulting with clients regarding any proposed temporary staffing solution. Professor Monroe Freedman of Hofstra University has stated his belief that ethical problems arise if a law firm tries to pass off the work of a temporary employee as that of a regular associate, pocketing the savings. Says Professor Friedman: "The client is entitled to know that there is somebody working on their matter who, for whatever reason, the law firm isnt willing to hire on a permanent basis."31 The ABA Committee on Ethics agrees and has opined that "where a temporary lawyer is performing independent work for a client without close supervision of a lawyer associated with the law firm, the client must be advised of the fact that a temporary lawyer will work on the clients matter and the consent of the client must be obtained."32
The single most important factor in obtaining qualified temporary employees is a reputable supplier employer. Customer employers should remember that they will be joint employers with any supplier employer for the purposes of many employment-related laws. For this reason, if temporary employees are desired, the customer employer should exercise all due care in selecting a supplier employer partner.
A clear and comprehensive agreement between the supplier and the customer employer is also critical to success. This agreement should discuss not only the respective responsibilities of both parties, but also the issue of insurance that will protect both parties and the client against any loss created by the temporary employee.
Both the customer and the supplier employer should assume responsibility for temporary employees. Both should remember that anti-discrimination, wage and hour, and workers compensation laws may apply. To that end, temporary employees should not be treated any less favorably than an employers regular workforce.
Temporary employees can be a significant benefit to overworked or under-specialized lawyers or law firms. The growth of this segment of the workforce suggests that temporary employees can be of great value to law firms. However, a temporary employee can also bring significant liability both to the supplier and the customer employer. For this reason, employers should not assume that temporary employees can be hired and fired without proper consideration. This is particularly true in the legal profession where temporary employees create a substantial risk of having conflicts of interest, confidentiality and insurance problems.
David T. Barton and C. Christine Burns are associates in the Phoenix office of Quarles & Brady.
Mr. Bartons practice focuses on employment law issues related to defending employers from wrongful termination and discrimination claims. Ms. Burns practice is concentrated in the fields of employment law and commercial litigation, with a particular emphasis in the defense of employment discrimination, common law wrongful discharge suits, EEOC and ACRD charges and products liability.
1. Statistics for the Second Quarter of 1997 obtained from Arizona Department of Economic Security, Research Administration.
2. Robert L. Rose, A Special News Report About Life on the Job and Trends Taking Shape There, Wall St. J., April 11, 1995.
3. Arizona Department of Economic Security, Supra.
4. Independent contractors, self employed, part-time, seasonal and casual employees are not included here because those employees have a direct relationship with the employer.
5. See, e.g., Nationwide Mot. Ins. Co. v. Darden, 503 U.S. 318 322 (1992) (holding that Congress use of the word "employer" means the established common law meaning "unless the statute otherwise dictates"); Professional & Executive Leasing, Inc. v. Commissioner, 89 T.C. 225, 231 (1987) (applying common law principles to determine relationship under the Internal Revenue Code); Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1008 (9th Cir. 1997) (applying common law test to determine ERISA eligibility).
6. See, Bartels v. Birmingham, 332 U.S. 126, 132 (1947). The IRS has developed a list of 20 factors to test for independent contractors status. Rev. Rul. 87-41; seealso 26 C.F.R. § 31.3401(c)-1(b). Although no single factor is determinative, and no list of factors exclusive, the following factors are regularly applied: (1) the degree of control exercised over the details of the work; (2) supply of tools, facilities, or equipment; (3) opportunity for profit or loss; (4) whether the work is part of the principals core business; (5) rights to discharge; (6) the parties agreement or intent. SeeUnited States v. Silk, 331 U.S. 704, 716 (1947).
7. See, Restatement (Second) of Agency § 220 (1958).
8. A.R.S. §§ 23-901 to 1091; SeeNation v. Weiner, 145 Ariz. 414, 701 P.2d 1222 (Ct. App. 1985). (Temporary personnel agency and hospital where employee had worked for two years were both deemed employers.)
9. Araiza v. U.S. West Business Resources, Inc., 183 Ariz. 448, 904 P.2d 1272 (Ct. App. 1995).
10. SeeLabor Force v. Industrial Comn. of Arizona, 184 Ariz. 547, 583, 911 P.2d 553, 559 (Ct. App. 1995).
11. 29 U.S.C. §201 etseq.
12. The Department of Labor has assigned primary, though not exclusive, responsibility for recordkeeping functions to the supplier employer. See Department of Labor Opinion Letter #874 (October 1, 1968).
13. 29 U.S.C. §203(d).
14. N.L.R.B. v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982); Bookdale Hosp. Medical Center & Member of League of Voluntary Hosp. And Homes of N.Y., 313 NLRB No. 74 (1993); Flatbush Manor Care Center, 313 NLRB No. 73 (1993).
15. See, e.g., Laerico Transp. & Warehouse, 269 NLRB No. 61 (1984).
16. Bookdale Hosp. Medical Center and Member of League of Voluntary Hosp. and Homes of N.Y., 313 NLRB No. 74 (1993); Flatbush Manor Care Center, 313 NLRB No. 73 (1993).
17. See EEOC Policy Guidance on Contingent Workers Issued December 9, 1997.
18. Broomfield v. Lundell, 159 Ariz. 349, 767 P.2d 697 (Ct. App. 1988).
19. See EEOC Policy Guidance, supra.
20. 26 U.S.C. § 3401(d).
21. 26 U.S.C. § 3401(d)(1).
22. SeeEarthmovers, Inc. v. United States, 199 B.R. 62, 67 (M.D. Fla. 1996); United States v. Garami, 184 B.R. 834, 838 (M.D. Fla. 1995). For a contrary view in a slightly different employment situation, seeOtte v. United States, 419 U.S. 43, (1974) and Southwest Restaurant Systems, Inc. v. I.R.S., 607 F.2d 1237 (9th Cir. 1979).
23. 26 U.S.C. § 3121(d)(2).
24. See, Shore Fish Co. v. U.S., 330 F.2d 961 (Ct. Cl. 1964).
25. See, Vizcaino v. Microsoft Corporation, 120 F.3d 1006, 1014 (1997).
26. Id. at 1010.
27. See 8 C.F.R. §274(a)(2)(A).
28. Telephone interview with Patsy Bakunin, President of Co-Counsel®, in Phoenix, AZ. (Jan. 5, 1998). (Ms. Bakunin reports that the demand for temporary attorneys has more than doubled in the past five years with approximately 200 temporary attorneys now covering temporary demands in the Phoenix area.)
29. See Opinion No. 97-09, State Bar of Arizona, December 1, 1997.
30. See Formal Opinion 88-356, American Bar Association, December 16, 1988 at p. 12.
31. Amy Stevens, Big Companies Hire More Lawyers Temps, Wall St. J., September 23, 1994.
32. American Bar Association, supra, p. 10.