HP Contract Workers Sue For Recognition 603
manganese4 writes "The Idaho Statesman is carrying the story of 33 local Boise HP contract workers suing HP. They claim that they were expected to perform at the same level of expectations as HP workers and thus should be given the rights and privileges of HP workers. HP claims the suit is without merit." From the article: "The suit seeks to represent 3,000 workers in Boise and elsewhere in the company and could involve as much as $300 million, according to the complaint."
About freaking time! (Score:5, Informative)
It wasn't right then, and if it's still going on, good for them for suing. I knew people that had worked there for YEARS and never got 'badged'. No vacation time (although you could occassionally get time off without pay) and rarely, if ever would you get any kind of incentive or pay increase. You'd also usually get let go without warning, and the contractors would play a game of saying that you're still employed with the contracting agency, thus not entitled to unemployment benefits (which, at least under Colorado law is not true. I managed to get benefits).
Anyway, it's about time.
They can't just call them "contractors" (Score:5, Informative)
The IRS rules on this are quite specific and, IIRC, Microsoft lost a huge case on this in the early 90's for hiring contractors that were, in essence, 2nd class employees.
From the article:
Huntley's lawsuit cites all 20 criteria and claims that in every case HP treats contract workers as employees.
Among them:
Does the worker have assistants whom the company supervises and pays?
Does the company furnish tools, materials and other equipment sufficient to show control?
Is the worker required to devote substantially full time to the company?
Kaupins advises companies to check with the IRS if they have any questions about contract workers vs. employees, because companies can be held liable for back taxes if worker status changes from contractor to employee.
This makes it harder for the (Score:3, Informative)
Back when I did contract work, I always had to go through a large agency because:
I wasn't on the preferred vendor list
I needed to have more than five employees working at my company
I needed to be incorporated - not much of a problem. My accountant did it for me for $75.
When I asked why the hoops, I was told about IRS rules. When I pinned them on it they confessed that it was because they were afraid of what happened in the article happening to them. As a result, I earned 40% less because of people like the above.
Hello, when you work for a contract company, you are treated differently: usually paid more then the regular employees.
Sorry about the rant.
As a contract worker, this worries me. (Score:3, Informative)
Re:They're right, this has no merit... (Score:4, Informative)
The same doom and gloom was predicted for Microsoft before that permatemp lawsuit was won by the permatemps.
I don't know, though, who's won the war.
It's nice as a contractor, when things at the company are very chaotic, knowing you're just a contractor and your boat doesn't really sink or swim with the fortunes of the company for a variety of reasons. Sure, you might be out of a gig, but it's just a gig. There will be others.
Re:They're right, this has no merit... (Score:5, Informative)
In this case, the contractors are claiming that for all intents-and-purposes, they functioned more like actual employeed than a contractor. They're use IRS defintions to back their case.
If the company can have you classed as a contractor, they save mondo money on not paying you benefits. They're saying they did the same work in the same office and effectively get discriminated against.
As I recall, a similar situation used to (does?) exist at Microsoft -- people could stay as contractors for years in the same position. They got none of the perks and benefits, and were effectively second-class citizens (or so I've heard, I've never even been to Washington State).
These people are trying to get themselves recognized as being actual employees, or at least equivelant.
Cheers
Re:They're right, this has no merit... (Score:4, Informative)
If you work through Manpower (as the employee the article listed) you do NOT work for HP and regardless of what work you do there you are NOT owed benefits/compensation from them.
You work for Manpower and should be arguing with THEM for better pay and benefits more in line with your current working conditions.
Not quite (Score:5, Informative)
Around here (BC, Canada) an employee is one who
For labour relations and tax reasons some employers try to put employees on the books as consultants or contractors, but their financial auditors (it's not GAAP [smartpros.com]), revenue canada auditors (it may be tax evasion), and the labour relations board smack them down pretty fast.
(std disclaimer: IANAL, IANAA, if you need a lawyer or accountant, get a real one)
No (Score:3, Informative)
The idea of 'contract' employee is you work to create a very spific thing, by a specific date.
You can:
1) Work where you want
2) When you want
3) wearing what you want.
4) the ability to hire your own employees to do the job
If you get responsibilities beyond that, your an employee
If you are told to work specific time, your an employee
If you have to adhear to a dress code, your an employee.
As always see A lawyer who specializes in this area whenever you are getting a new contract.
Re:They're right, this has no merit... (Score:4, Informative)
All true.
The result is that contractors at Micorsoft NOW can only work for 12 months and then are required to leave the contract for 100 days, before they can be rehired to work on the contract for another 12 months.
There are a whole bunch of contractors working that way at Microsoft's support center in Charlotte, NC.
One of my current co-workers has been through the cycle twice and is going back again in May.
Re:More reasons for Outsourcing (Score:2, Informative)
A company I left never offered that as an option..yet have had contractors doing the same thing as regular employees. The only difference was that they were always set home at 40 hours, because they didn't want to pay overtime.
Contracting should be a temporary thing...but some companys hire contractors to avoid paying benefits, but also want to keep the contractor indefinatly. I don't find that to be the right thing to do.
What ended up happening at the company I left was that they basically stopped hiring anyone (except management) full time so they could 'fire' the contractors if there was a short lule.
Here's the Microsoft lawsuit (Score:3, Informative)
MS I believe lost all it's appeals but has still been delaying payment... need to check up on that. I know some of the plaintiffs. Last I heard they still hadn't received their checks.
Judge: Contractors Were Common-Law Employees of Microsoft
A U.S. District Court judge ruled Wednesday that workers employed as independent contractors, and then subsequently forced to work through temporary agencies, were in fact common law employees of Microsoft while working at the company between 1987 and 1990. The ruling in the class action Vizcaino v. Microsoft lawsuit also clarified which workers would likely be part of the class, but left open the possibility that potential class members not covered under this case could be a part of future litigation.
continued in the link
Re:I never understood.. (Score:5, Informative)
If the employment terms can't pass certain tests that distinguish them (the contractors) from the regular employees, then regardless of contract, they are employees and deserve the same benefits that a regular employee enjoys.
If it was simply a contract dispute, you'd have a point. If the argument is that the contract is illegal, or meritless in certain areas, then you don't. And without seeing the contract, and the full text of the labor laws of Idaho, speaking from knowledge based on osmosis from your wife is slightly ill-advised.
Re:That ain't how contracts work (Score:4, Informative)
1) No matter how the company defines "contractor," the IRS has it's own guidelines determining who is or isn't a contractor.
2) If your employer ever makes demands beyond what's outlined in the contract, then there's a rather severe power imbalance when it comes to negotiations.
A friend of mine ran into this problem. She was a contractor, and as her contract was approaching time for renewal, her employer began to demand that she be in the office during certain hours rather than working from home. Since her work didn't require her to be in the office, this was clearly illegal but the message was was quite clear: do this, or your contract doesn't get renewed. With contractors, a company can keep doing this until it finds someone willing to play ball.
I think lawsuits like this are a good thing because they provide some credible deterrent for this kind of behavior. Without the threat of such lawsuits, there's no serious disincentive against abusing the rules surrounding independent contractors, and the rules become effectively worthless.
Re:No (Score:4, Informative)
And the determination of what is an employee is set by the federal government, including IRS guidelines, labor guidelines, tax code, and congressional laws. State laws may provide certain benefit to non-employees, but that doesn't make them an employee.
When you sign a contract, you are agreeing that you will do X amount of work (hours, units, a project) for Y amount of money (whether flat or per hour). Often, other responsibilities such as work hours are specified in the contract, or there's a clause stating that the employer will decide those terms.
As a contract worker, you are not entitled to any benefits whatsoever. Under some cicumstances, the "employer" doesn't pay payroll taxes, and you are responsible for all taxes, because you are effectively self-employed. My father got swindled into this as a dealer rep for an auto auction in the 80s. The owner of that auction eventually went to prison for tax evasion and ghost employment (big surprise).
And yes, if you plan on working as a contract worker, get an attorney to look over the contract. It'll cost you some (it cost my former roommate $150), but is well worth it. Not just any attorney, though, an employment attorney.
IT people need to read about how law affects them. I've always found that Nolo [nolo.com] has great books for us non-lawyers. Those in IT would be most interested in this book [nolo.com], which provides guidance on these issues for both employers and employees.
Re:I never understood.. (Score:5, Informative)
But a contract isn't valid if it requires a law to be broken. And in all states in the U.S., you can't just call someone a contractor and have that be the end of it -- every state has there own checklist of what is a contractor and what isn't. Just because you have someone sign a contract saying they are a "contractor" doesn't mean that contract is valid -- they actually have to meet the test to be a contractor.
It's like the whole exempt versus non-exempt worker -- employers like to classify workers as exempt, so they don't have to pay them overtime. But the laws don't let the employer decide who gets overtime and who doesn't -- there are a set of rules that define what the duties of an exmpt employee are, and if an employee doesn't meet that test, then classifying them as exempt is against the law, and any contract specifying otherwise is void.
Now, who knows if these contractors who are suing meet the Idaho definition of contractor or not -- but the whole idea that a contract is the be-all-end-all is incorrect.
Corporations are EEEEE-VIIIIIlL! (Score:3, Informative)
This company has been one of the worst offenders, treating its employees and contractors like slaves on a Roman galley, while they sit in their togas enjoying grapes fed to them by beautiful blonde women. I mean the CEOs are making millions and millions while their employees are only able to buy a nice car and a nice house and send their kids to a nice college. It isn't fair!
I hate corporations. I mean, all the do is sit around and hire people and pay them good money to perform services and make goods, which they turn around and sell for decent prices! I mean, who do they think they are? If I want good products and the latest toys at a good price, why do I have to go to evil corporations to get them? And why do they make obscene profits on my willingness to buy and their employees willingness to work! Is there any justice in the world? Somewhere, somehow, Bushitler and Cheney are involved in this. I smell Rove behind the curtains.
We should just ban corporations and everything like them. If you want something, you shouldn't be able to go buy it from someone else, unless that person is going to be selling it at a loss. Make it yourself, dangit! And you shouldn't be able to work with other people, even if you pay them. That's not right! What are we, slaves, to be paid for our valuable labor? And you shouldn't be able to sign a contract saying you will provide services to a corporation in exchange for money. If you want money so bad, why don't you just make your own?
In the meantime, let's file frivolous lawsuits against the best corporations around and make them spend their hard-earned cash defending themselves from lunatics like myself. It's only fair!
DOWN WITH CAPITALISM! CORPORATIONS ARE EVIL! SO IS BUSHITLER!
Re:They can't just call them "contractors" (Score:4, Informative)
Most of the posts so far are missing the entire point of this suit. This isn't about whether these contract workers can get the benefits that the employees do. That may be the _reason_ that the people are suing HP, but it is not the issue. The real issue here is whether HP is trying to reclassify employees as contract workers.
To (over)simplify, if a contract worker is treated like an employee then that contract worker can get the legal protection that an employee gets. That's why those IRS criteria are so important here; they aren't just persuasive arguments, they are central to the case.
This is not a contract issue any more than hiring child laborers is a contract issue. In either case it really wouldn't matter whether the contract was agreed to or not because the contract would not be enforceable as a matter of law. I'm sure that the people who are suing only care about the benefits that they are missing, but the issue in this case is entirely independent of those benefits.
Standard disclaimer: I'm not your lawyer and this is not meant to be taken as legal advice.
Re:This just in... (Score:2, Informative)
You are a little late. The 'layoffs' were announced about a week ago. They are being referred to as voluntary severance (an employee may choose to leave with severance pay) to be followed by layoffs if not enough people choose the voluntary severance. The contractors that become collateral damage in this are just let go. No severance pkg.
[disclosure: I live in Boise and have friends who are employees and 'contractors' for hp]
hp (in Boise) uses a couple of contract places to hire people through, mostly to test printers and printer firmware. The postings on Monster and other places make it look like you will be an employee of hp. But no, you will be hired through a temp agency and given crapy benefits. Then you go to work every day at the hp site and do whatever they tell you to do. They do not hire you for a specific set job, ie - a contract. You are a non-employee being treated like an employee w/o benefits.
I not surprised this is happening. Even though we all know the only one that will see any money from this is the lawyer.
Re:They're right, this has no merit... (Score:3, Informative)
I make more than the employees.
Enough more that I can buy all the benefits they have and still have more left over.
I am immune from company politics. I can always hide behind the "I don't work here" shield.
I can leave anytime I want and come right back on good terms.
I can switch positions, or entire departments with ease, so my job is varied and interesting.
My networking is very strong, being in the contract industry, so I can change entire companies with ease... I am not tied to MS for an income and am not worried about losing my MS job. In my opinion I have more security than FT employees.
All this and the tradeoff is I can't use the company gym... bid F. deal.
It used to be much better than this... I USED to be able to work year round, taking a break whenever I want, but since the crappy lawsuit I have a manditory 90 days off work every year... YEAH... That lawsuit sure did alot of "protecting" of me. What it did is put money into the pockets of some lawyers and make everyone involved jump through some more hoops of additional regulation.
These people signed up for a good deal, with many benefits and a fw tradeoffs. Now they want to get the best of both worlds post-fact... the extra money and flexibility of contract work combined with the few bennies of FT work.. an option that the employer NEVER offered ANYONE because it's too freaking expensive to make that offer. In the end, a bunch of attorneys will pat themselves on the back and both sides will complain about how bad they got screwed.
Re:I never understood.. (Score:4, Informative)
Actually, this particular lawyer [ridenbaugh.com] is well known and respected in the state. He is a former Idaho Supreme court member, and also was a Democrat candidate for governor in '98.
Re:Assholes (Score:3, Informative)
No, the losing defendants are. If they had no cause of action, the plaintiffs wouldn't file. If the cases had no merit, they'd be dismissed. Blame the abusers of the contractors, not the abused contractors.
Some of the restrictions and "rules" were down right retarded. I won't even bother mentioning them.
Of course not. You haven't got the goods. This is just hot air.
The relationships with permanent employees (often in the same friggin' project) were strained and sometimes became akward.
No shit. They knew what was up. Your presence was a threat from management. "We don't really need permanent employees."
I could care less about the "let's hold hands and sing Kumbaya" crap, but LET ME DO MY JOB FERSSAKES. You're effin' paying for it anyway.
You're a contractor. You think management is wasting your time, but you are getting paid for it. What's the fuss? Come in, do what you're assigned, get a check, go home. What's the frickin' problem? Did you own stock in the company or something? What skin is it off your nose if management wants to be - in your opinion - inefficient? Did they contract your services as an efficiency expert?
YOU'RE A CONTRACT WORKER FOR THE LOVE OF ZOD!!
Not if the contract is used to get around labor laws, you aren't.
IRS Publication 15-A (Score:3, Informative)
For more information on who is an employee and who is a contractor, see IRS Publication 15-A [irs.gov].
This isn't about taxes, smart guy (Score:3, Informative)
Check out Capital Cities/ABC, Inc. v. Ratcliff, 141 F.3d 1405, 1409-10 (10th Cir. 1998). After a bunch of news carriers were reclassified by the IRS as common law employees, they sued to be included in the company's retirement plan. The carriers got their asses handed to them by the Tenth Circuit Court, however, because they signed agreements stating that they understood that were not employees and were not entitled to benefits. Same thing happened in Trombetta v. Cragin Fed. Bank for Savings Employee Stock Ownership Plan, 102 F.3d 1435, 1438-39 (7th Cir. 1996) to a bunch of loan originators.
The only reason the IRS makes it so easy to reclassify contractors as employees is that they get more money that way! Employment and benefits law are not concerned with who the IRS thinks is really an employee for tax calculation purposes.
The fact is, even if these contractors can convince the IRS that they are employees of HP, all that will entitle them to is to get their income taxes withheld by HP. And wouldn't that be a huge victory for the little guy?