Employment Lawyers: Is there a limit on how long I can be "temp"?

Factual Questions
1

Here’s my scenario: I have been a temporary employee for over 12 months now (somehow defeats the term “temporary”) at a “global” company whose headquarters are located in Ohio.

They have not hired me on, yet they have promoted me and given me more than one raise in pay. Yet, by not hiring me on, I have no acess to medical benefits (unless I seek that coverage out on my own, of course)

Isn’t there a time when one stops being “temporary” and they have to hire you? My usual modus operandi for employment is to go through these placement agencies. Im rather lazy when it comes to job hunting, I admit it. It’s not top on my list of fun things. So, I let them do the hunting. Then, as has been my experience, I temp for 90 days, and often less than that, and I am offered full time employment from the client company directly.

Obviously, this client company appreciates my work - they’ve given raises and promoted me. I have given them countless hours of overtime, I am constantlly offering to help other employees who are falling behind. Not to toot my own horn here - but I am a model employee.

Is there a law I can cite to help me get in with these folks? I really like what I do. I dont want to start all over again somewhere else. OR I am just screwed because this is big business’ way of saving a dime so they wont have to give me benefits?

Maybe this last thought is for Great Debates, but if it is the latter, then why should anyone work hard to succeed? :frowning:

2

IANAL but I know from when I worked as a temp, the agencies often have a contract with the employer that if they hire you full time, they need to pay a certain amount of money to the temp agency for hiring you away. After 12 months, this is null and void, is it possible your employer is waiting that time out?

I know when I worked as a temp I finally went to my boss (after four months) and said that I needed full time permanent employment, if they couldn’t hire me, then I would have to seek a position with someone who would. I knew I was taking a risk, but counted on the fact that my employer really liked my work.

My gamble paid off, and I got hired, but I was prepared for the downside as well.

3

I don’t think there is a limit in most states. I am an IT contractor/consultant which is a temp of sorts as well. Our pay can be high but we usually just work at the same place week after week through an agency with no benefits as well. Besides the hourly rate, there is little difference between us and other temps. I have known many contractors to work at the same place for years on end. I have known some that were the most senior “employees” in a department with over 10 years of service and not ever been transferred over to be a regular employee. Granted, in contracting, that is often the choice of the contractor because there is a risk of a pay drop when being converted to an employee.

When I was a manager, the longest true temp I had worked that way for over 18 months and although we did eventually convert her to a regular employee, we weren’t forced to.

4

I think your situation is similar to that of Microsoft a couple of years ago. That company had a lot of contract employees that had been “temp” workers for years on end. I’m not sure what the current situation is like for that, though.

5

As an employer myself, the most obvious solution is to just ask your boss (or, HR in a company that size, I guess?) what the deal is. More’n likely, someone has forgotten about you. That happens in my company of 10…

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6

In the last company I worked for, a few of my team were “consultants,” which is supposedly temporary. They had worked there for the better part of a decade. That arrangement was obviously acceptable to both the agency and the corporation. There came a point where there was a great effort to convert consultants to permanent employees; in most cases it was to avoid being let go entirely. At least one griped that as an employee he made less money and had to work longer hours as needed. Of course, he did not mind the paid vacation and sick days.

7

Michael Moore mentioned that when he was backstage on “Late Night with Conan O’Brien,” he spoke to several people working there that had been “temps” for 8 or 9 years.

8

I just completed my “temp” job at a law firm…I was there five and a half years. However, to be fair, at one point they offered to hire me and I said no, and then I asked them to hire me and they said no, and they we both agreed I should be hired and then they changed their insurance plans and wanted to pay me less than I was earning as a temp, so we agreed to keep me on as a temp…following all of this? At any rate, the long term class action lawsuit I had been working on all that time finally ended, and so did my job - and it would have ended if I had been full time or the temp that I was.

BTW, after a year, I badgered my temp agency and they gave me a a few side bonuses, some regular paid vacation time, and a monthly stipend to help pay for my health insurance I was paying privately…so to be honest, I was the happy temp for all five and half years.

And specific to your question, at least in Nevada, a “right to work” state, there is no limit to how long you can be a temp…and I am the poster boy for the fact.

9

You’re not a “temp” – you’re agency or contract help. You don’t work for the company you think you do, but rather you are an employee of the contract house. You’re permanent there, and if you want benefits you need to ask your employer why you’re not provided benefits, or demand benefits (or look for an employer that does – up here in Michigan in my industry all of the contract houses provide them).

As to why it looks like your company’s customer is giving you raises, also consider that your company is just passing on some of their raise to you, i.e., the customer has changed their requirement from a TechManPerson IV to a TechManPersonV, which is a higher category of worker that your company can charge more for. The net effect, of course, is that you receive a raise, and unfortunately the perception is that the customer company gave it to directly, whereas they do like you but had to give it to you indirectly.

Now the thing with Microsoft was Microsoft’s fault – the affected people weren’t agency personnel but rather independant contracters, so the line between being an employee of Microsoft versus an independant contractor was really and truly blurred. That doesn’t apply to you because you’re not independant; you work for your employer and are a hired service.

If your company won’t give you benefits, can you go to another company that deals with the same customer so that you maintain the same position? Sometimes there are clauses in respective contracts to prevent that, but if your industry is big enough, that doesn’t usually happen since shop-shopping is common and accepted.

10

We had about the same issue at my company that Microsoft has. Technically speaking, after being there a certain amount of time at the company’s location, certain tax situations occur. For instance, if you receive a per diem from your company or you write off deductions, you can only do that for about a year (IIRC, I’m not a tax lawyer, but this issue used to come up a lot). After a period of time, you will have to claim your per diem as income, and you will be barred from taking deductions. You will have other issues if the company you’re temping at gives you money, benefits, etc. Our standard policy is to try and hire someone because we don’t want them to leave for an extended period of time (at least one month) so that we don’t run afoul of any IRS issues.

If you’ve been given all these – for lack of a better word – incentives, as you stated, I would think that you have really good bargaining power to be made permanent. I have a lot of friends in IT who do this routinely, and have had great offers (only to leave after a year or two of permanent because of boredom).

The only hesitation I can see on the employer’s perspective is the taxes they would have to pay you (employment taxes). I’m definitely not sure how the employment tax breaks down, but I honestly cannot see it as a good reason to not hire quality talent.

11

Thanks to all for the input. As it stands I received monetary raises, but I have no paid vacation nor paid sick time, and the insurance benefits my “agent” offers are more than laughable so I have independent coverage.

What I get from my managers when I ask them to hire me is: “We really wish we could hire you, but our hands are tied. Our employment budget is way too high as it is.” Which is mind boggling because the ratio of actual employees to temps is 1 to 5. The temps regenerate every 5 months and we start over with training, with the exception of myself and four other temps that have lasted over a year. Totally counter productive IMO

Guess I’ll just keep treading. Vacations are over-rated anyway right? sigh :frowning:

12

It could be because your temp agency charges a large fee for hiring one of you off permanently. I know you can negotiate that fee away if they use the agency a lot, or, what one company offered me was have them cut your salary for the first little while to make up the difference? The office offered me that money in a bonus if I stayed there after six months.

It’s a thought. Find out what the real dealbreaker is.

13

I think you should try Balthisar’s advice. I have a friend who worked for a large (regional) utility company through a contract labor agency. I’m not certain how long it was, but I’m pretty sure it was much more than five years (8, maybe?). She finally got hired into the prime employer a few years ago. But during the period when she was working for the contract labor company, she got insurance, vacation and illness days, and seniority raises (plus merit, when that came around).

The issue for the primary employer in your case is almost certainly the cost of benefits. You know, the stuff that GM and its former subsidiaries are asking the unions to reduce? You see, a budget for labor includes not just the salaries and FICA. It also includes the following:

annual vacation pay
annual illness day budget
health insurance (a monster, these days)
dental insurance
term life insurance
disability insurance
educational benefits
retirement plan (true whether it’s a pension or a 401K, or whatever; it all costs the employer)
unemployment insurance (paid to the state)

It feels like I’m missing something, but I can’t think what it is just now. So let’s say the base pay at which you’d hire in is a (purely hypothetical) $40k. In order to get to the figure that represents that position of yours in a budget spreadsheet, you must add on the employer’s portion of FICA (Social Security - which is not a trivial amount anymore; it’s 6.2%, the same percentage you pay), and the annualized premiums/costs for each of the items I listed above. I think I may be on the low end by projecting the benefits costs at an additional $10k per year, but it’s been 16 years since I worked directly with any kind of payrolls, and 8 years since I even worked with a payroll budget spreadsheet. Many of the costs listed above are not payrate-dependent, which is why the employer’s benefit costs are not a lot lower for an employee who is paid less.

They may truly not be able to hire you, even if your boss and his/her boss really, really want to. There may be a ruling from the CFO (or whatever the head honcho of finance/accounting is called), or even from the CEO or board of directors, that “your” department/division can’t hire, even if other parts of the company can. And the entire company (or whatever it is; governments, gov’t agencies and non-profits all work by the same budgetary rules and principles) may be under a no-hire lockdown. Some industries haven’t recovered from the crash of the dot-com bubble, or 9-11, or both - and some never will, even if they’ve avoided going under.

I don’t want to make you paranoid, but here are some things to consider:

CAUTION: I am not asking these next questions for you to answer to all of us. They are for you to think through, in the event that you have reason to know that others have been hired. Is there anything that might make you a less desirable hire? I’m referring to age, weight, or health problems of your own, or in a member of your family who would be covered under your insurance. Is there a family history of some expensive health problem that you’ve innocently mentioned to anyone in the office? Any of those would make your cost to the employer higher than the “normal” amount. Why? because any of those (with the possible exception of age, but they always assume the worst) will affect your attractiveness to the company as a permanent employee. Even if you only mentioned once that (e.g.) “My dad’s diabetes has really affected his lifestyle. He’s lost weight, and taken up working out at the spa.” Or, “My mom’s cancer ten years ago really scared us, but after the surgery and chemo ended, she went back to her old self.” Or (God help us), “My uncle finally had to go on dialysis. For years and years they were able to control his health problems, but it finally stopped working.”

If - and it’s a big if, in today’s economy - something that was an innocent remark, but fell on (or was passed to) the wrong ears, that could be the problem.

14

As an employer (with “temps”) I know a lot of it has to do with the base markup. Most agencys charge the contracting company a 30% to 50% markup on your pay. As an example: at 33% markup, if you get a .60 cent raise the contracting company forks over .80 cents and the agency keeps .20 cents for each hour you work. Some agencys do impose fees and fines for hiring employees full time, at the very least there is a minimum time of contract.

Right now you are the bread and butter for the agency, they would hate to see you go especially if you are getting raises (and thus they are getting raises). Knowing this, and possibly even knowing what percent your markup is, might make for good leverage when negotiating with your actual employer (the agency) for benefits and such. I know that my contract labor (nice term) has gone to their agency several times to ask for various fringe benefits (not French benefits) and their success rate is about .50%.

For the contracting company the balance has to be between your pay plus markup and the “actual” compensation they would have to pay as a full time employer. Sometimes temp rate plus markup is a little more costly than actual compensation but companys justify it by adding in the cost of administration, what it would cost to hire another person to deal with vacations pay, insurance claims, grievances etc. Other times the markup over the course of a year is considerably less than a contract buyout and a company might turn that savings over to their higher ups (managers, CEOs, board members or investors) and hope for a reply to pay out the contract buy out so they have a better chance of keeping a better employee.

If you get nowhere with the agency, keep after the contract employer, sometimes things are oversighted and other times policy changes. Keep on them, don’t be aggressive or annoying, but be persistant and consistant and don’t let them drop their guard. Good luck.

15

The problem that hit Microsoft (according to my old HR department that was afraid they’d hit the same situation with our contractors) was that they paid their contractors very well (better than employees) but treated the contractors very similar to employees, then the contractors saw the money that MS employees got from their stock options and said, “Hey, we’re employees, too. We want a slice of that pie!”

Our HR then set rules that followed the ruling in the case on points which the court deemed to separate employees from contract labor. Contractors had to work on defined, specific tasks (projects) OR only work for a certain limited amount of time, less than half of the normal hours in a year. There was some other, smaller stuff, like contractors shouldn’t be included in staff meetings and functions. And information disseminated to employees, if important to contractors, was shared in a separate meeting.

16

I know for a fact that our contractors’ agencies get anywhere from 50-100% of what the contractor makes (mostly 50% as we are under a direct mandate from my boss, the CPO (Chief Procurement Officer) to limit what we pay out to contractors). So, if a guy is making $50/hr take home pay (pre-tax), that means, on avg, my company pays his contracting agency $75/hr. I think that that’s a major waste of cash, but my boss justifies it as they are temp labor, less admin cost, and if they are really valuable, we’ll hire them outright (I’m not sure what we pay to buy the contract, but I know it’s not cheap).

Does anyone have a base idea of how much extra overhead it costs for a true employee? I know about the 6.2% FICA we have to pay, but there’s also health insurance, 401(k), vacation (I massively disagree with this “cost”) – anything else I’m forgetting? Also, can’t companies write-off temp workers? I’m not a tax lawyer, but I thought I heard someone say that it’s possible.

When my sister was converted to FTE (full-time employee/equivalent), she justified by saying that there is no way the company could be saving money by paying double her rate. They agreed. I would reccommend the advice already given in this thread. Also, hit on the contracting agency for vacation days. My sister did that, too, after like 6 months with her agency.

17

I work for a company (and with former companies) with significant temp/contract labor force, and have been a temp often myself.

The default assumption from personnel or management is that you are temp/contract by your own choice. In many cases, people will work temp because they already have benefits through their spouse, or for other reasons.

It is assumed that if you desire a permanent position, then you will take the action to pursue the possibility. Neither the company, nor your contract house, is under any obligation or desire to make that effort for you, and rarely will make any unsolicited offer. The contract house may actually resist making any effort to help (this happened to me, the temp firm ignored requests for references, lost paperwork repeatedly, etc). When corresponding in any way with your temp firm do it in writing.

The worst that will happen is that the company will say no, in which case you stay where you are for the time being, and shop around for another company placement.

It is often possible to make the offer to “go solo” as an independent contract worker and keep your same job but with a pay boost since the temp agency is no longer getting a cut, but the legality of that situation can vary.

18

An option, assuming you are not contractually prohibited from this in any way by the agency or the client company, is to apply for regular employment at a competitor, supplier or business partner of the client company. The competitor would not need to pay the agency conversion fee, but would have the reassurance that you’re already doing the same thing for XYZ corporation.