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Temporary employee rights or lack of in California

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  • Temporary employee rights or lack of in California


    I started working for a firm in early January. The sent me an offer letter, stating that I was hired as a temporary employee until the end of January, that as such I wouldn't have access to health benefits or vacation pay.

    The principal came to see me in early February to let me know they were keeping me for an additional month - no letter this time around.

    I have been in the company for almost (4) months. Still no letter of employment - full time or temporary, no health benefits - they told me that the positive thing about going temporary employee vs consultant was that the time spent as temporary would count toward the three months required to start earning health benefits as a full time employee, and that meant a reduced rate.

    I have been working an average of 60+ hours a week, not being paid overtime, turning in timesheets at 40 hours. After (4) months, I keep on being praised, but no sign of hiring me full time - they are blaming the lack of billable projects. I don't have health benefits/vacation/PTO.

    My questions are:

    Is it legal to keep someone as a temporary employee - hired through the company, not by an outside agency - for so long, given that I haven't had a contract/idea of the duration?

    Is it legal not to pay overtime when someone is hired as a temporary employee?

    What are the option if I were to take legal action - I had to show all time sheets at 40 hours...

    Thank you

  • #2
    1.) Yes.

    2.) No, not if you are an employee as opposed to an independent contractor.

    3.) You can file a complaint for unpaid overtime with the state or the US DOL; you can file a civil suit. Any of the three, but only one of the three.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


    • #3
      Just to verify - you are a non-exempt employee & not exempt correct?

      What kind of firm do you work for (not actual name)?

      What are your job duties (& job title)?

      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.


      • #4
        Also, health benefits are subject to a federal law called ERISA and vacation almost certainly are not. The ERISA law basically means that the employer must have a formal written benefit plan covering their health benefits and that the employer must follow their published plan to the letter and that they must give a copy of the Summary Plan Document to any employee (including you) who asks. I am not saying that they must offer you health coverage, but I will say that they must follow the exact wording of their plan (which I have not read).

        Vacation is something very different. Vacation is almost certainly not ERISA, meaning subject to CA law only. Meaning a very different set of rules. It is worth reading the company policy (if any) and there is a chance (especially in CA) that the policy may be legally enforceable, but this is far from a sure thing.

        Past that, what everyone else says. It is not impossible that you are Exempt from overtime, but that is very much a function of your exact job duties, and possibly your industry. Past that, CA is tighter in this area then the federal rules are.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


        • #5
          Just as a point of clarification; I have spent most of my professional life administering employer-sponsored health plans, and I have been a temporary employee who has had their contract extended indefinitely. So I know this issue from both sides of the desk.

          The odds are very, very great that the terms of the health insurance policy are written to expressly exclude temporary employees, regardless of the length of time they are employed and regardless of contract extensions. And if that is the case, then that's all ERISA cares about.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


          • #6
            Maybe, although I have been on the receiving end of audits where the plans were not written correctly. In at least one of those cases, the company could not even find their plan, much less confirm their compliance. And of my last 4 employers, all 4 were out of compliance on the 401(k) (another ERISA plan). I first found out about plan compliance in the 1980s when IRS hit us with a $250K fine for mishandling of temporary employees. I made a point with my next 3 employers of routinely getting copies of the benefit plans and READING THEM shortly after being hired. I have yet to be hired into an employer who was fully compliant, largely because while the people who actual wrote the plans may (or may not) have known what they were doing, the people who were making the actual decisions effecting compliance were failing to read the plans. With 2 of my last 3 employers, we ended up rewriting the 401(k) plans so that we in compliance (on a go forward basis) with what management had previously decided that they were going to anyhow. Now these are mostly big companies with large HR departments. And the majority of U.S. employers offering health insurance are fairly small employers without full time benefits people on staff.

            It costs nothing to check the SPD and find out what the rules actually are. Three million employers in the U.S. Maybe 40% of those provide health care plans and of those say 1.2 million employers, maybe a few hundred thousand actually know what they are doing. I am not saying that the employee checking the wording of the benefit plans is a sure thing, but I will say that failure to do so is not smart. And I do not see why the OP would want to give their employer the benefit of the doubt in this situation.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)


            • #7
              Not even remotely suggesting that the OP should not check. Simply stating that it is not even close to a sure thing, even with ERISA, that she is entitled to benefits. It is quite legal and quite common for temporary employees to be excluded, and while not disputing your experience, mine has been that the employer's I've worked for have all been very careful to state that.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


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