Hints for Avoiding Co-employment Claims

In the wake of the case brought against Microsoft and won by temporary workers, concerns still run high among many employers that their temporary and contract workers may be found to actually be co-employees.

The classification of temporary and contract workers is not a black-and-white matter. Nonetheless, there are practical steps most companies can take to minimize claims by temps and contractors that they are due the full range of benefits coverage and retirement protection afforded regular employees.

Generally speaking, a company is more likely to avoid co-employment claims if:

1. The company has absolutely no input concerning how, how much and when the temp is paid.


2. The determination of which temps are assigned to a particular client company is made soley by the staffing company, with no client participation in the decision.


3. Pre-employment testing and screening is conducted solely by the staffing company in accordance with its own procedures, not those of the client.


4. The decision to fire, discipline, reassign or further train a temp is solely that of the staffing company.


5. Temps are instructed to report illness, lateness, family problems and the like to the staffing company, not the client.


6. To the extent possible, questions by the temp concerning his or her work are directed to the staffing company.


7. When there are a large number of temps or contractors at the client’s worksite for an extended period of time, the staffing company provides onsite supervision.


8. Client companies avoid providing “fringe benefits” to temps, such as invitations to participate in company-sponsored social functions, outings and athletic events.


9. When a change in assignment or duties is required, the client discusses them with the staffing company as opposed to directly with the temporary or contract worker. This also applies to the temp working overtime or on a different schedule.


10. In the event a temp incurs reimbursable business expenses, these are directed to the staffing firm for payment. The staffing firm, of course, can pass the costs through to the client as an out-of-pocket expense.