I am a recruiter for a staffing company. I had a potential candidate apply for a position where it states i nthe job description "Will be OT between 5-20 hrs per week." The position is a contract position and OT pay would be available. The contractor wrote me back the following:

From the job description I am concerned about several
items, not the least of which is "required" overtime.
As a recruiter, I am going to assume that you are
familiar with the SS-8 Laws from the IRS regarding
contracting. If such a thing is truly requied by the
customer, they are looking for an employee to control,
not a contract design engineer.

I am not familiar with these laws or what he is trying to say- can someone help me with a response please? By the way, the position is located in SC, but he is from MI.

I think your candidate is confusing some of the criteria to be an independent contractor (i.e. self-employed and working for an organization as an IC) and what it means to be a contracted employee. If you place this candidate with a client, he will be employed by YOU. You in turn are loaning him to the client to do work for them. That does not make him an independent contractor by any stretch of the imagination. He is an employee of your agency's.

Unless you've omitted something significant, there aren't any legal issues here. (By the way, if I were you, I'd question whether you want to go further with this candiate for this staffing opportunity. He sounds like he's going to be a pain in the a** to work with.)

I agree with Beth. This employee will very likely to turn out to be more trouble than he is worth. He will try to take every law he doesn't understand and want you to jump through hoops when, in actuality, he doesn't know what he's talking about. Personally, as a manager for many years, I'd pass.

Beth and Patty - you are both right of course that it is clear that this guy is an employee, not an IC.

What is not so clear is whether the OP is listing this guy as an employee or IC. Obviously they SHOULD be considering him an employee - but are they?

The way I read it, the guy is a candidate and has not yet been employed in either an employee or an IC capacity.

I agree with that interpretation, but it's still not clear if they may have done something to suggest that they are going to classify him as an IC.

It sounds to me as if they're going to show him the door.

What they *might* do is irrelevant. You're trying to create a problem where none exists.

What they were planning to do (not "might" do) is relevant in light of the fact that his concern was well founded if they were planning to classify him as IC /and/ require overtime.

Second, why would a staffing firm respond to this by "showing him the door"? First, IF he's right then "showing him the door" could get them sued or worse (loss of business license, very high fines and tax penalties, criminal charges for tax fraud, etc.).

He's just raising a concern. If the concern turns out to be poorly founded, then the correct way to respond to it is just to tell him that they plan to pay him as an employee, not an IC, despite being on "contract" work in an unrelated sense. If it turns out to be founded, he may have saved these people a lot of trouble.

Considering that the position is apparently for a 'contract design engineer', my industry-specific knowledge suggests to me that there is a pretty good chance that he is actually applying to an IC position, and he is correct in his suggestion that the description they have provided is inconsistent with an IC set-up.

Last, given that he is clearly correct in his suggestion that this particular representative of the staffing firm is not familiar with the difference between an IC and an employee, that is something to be concerned about, and it is good that he is expressing this concern. It is very much to the benefit of the staffing firm that they get this issue straightened out, or at least teach their employees the difference.

Last, it appears that, in essence, by rejecting the position that they've advertised, he's showing THEM the door.

This is a candidate applying for a position. He has not yet been hired. Showing him the door does not create any legal liability for them as they have no legal obligation to hire him in the first place.

Choosing not to hire him on the basis of his complaint about their intent to engage in tax fraud would constitute grounds for a lawsuit.

I give up. There IS no evidence that there was any intent to engage in tax fraud.