In a BLR webinar entitled "Part Timers, Temps and Interns: How to Avoid the Legal Risks of Less-Than-Full-Time Employees," Nancy M. Cooper, Esq., of Garvey Schubert Barer in Portland, Oregon addressed the issue of paid time off for temporary and part-time employees.
Whether contingent workers such as part-timers will be entitled to vacation or paid time off is typically a matter of company policy. Although not required, many employers offer a prorated amount of vacation for part-time employees who temporarily work full-time hours.
In the famed Microsoft case (1999), a federal appeals court ruled that Microsoft Corp. had to pay retroactive employee benefits (including stock options) to temporary employees hired through staffing agencies. The issues revolved around whether the use of "permatemps" -- temporary employees who are engaged to work for the same employer in the same jobs for longer periods of time.
Understand the impact of a "joint" employment relationship on benefits. The courts consider numerous factors in determining this type of relationship exists ("common law employees"), including how much control you retain over your temps' work, who provides their equipment, and how much discretion they have over hours and time of work. In most cases, long-term temps are employees under this test, even though a staffing agency hires and pays them, because you and the agency are legally considered "joint employers."
(In one case, the employer who hired a temporary worker via a temp agency was held liable for damages for refusing to reinstate her after she returned from maternity leave because, the courts ruled, the employer [not the temp agency] actually supervised her work, determined her schedule, and approved her maternity leave!)
Nancy M. Cooper, Esq., chairs the labor and employment practice group at law firm Garvey Schubert Barer in Portland, Oregon (www.gsblaw.com). She provides employers with labor and employment counsel, including crafting and enforcing discrimination and harassment policies, executive compensation packages, contracts, noncompetition and confidentiality agreements, and other personnel management issues.
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