Q: I WORK for a temp agency and assigned to work in offices doing clerical and data entry tasks. I am required to submit a time sheet to my agency and to the actual business that I temped for. There are times when I would work more than 8 hours per day or more 40 hours per week. However, according to the temp agency, I am not entitled to overtime because I am an independent contractor. Is this true?
A. No, you are an employee entitled to overtime. Temporary or leased employees who perform the same duties as regular employees are covered by the same employment laws that protect regular employees.
Temporary or leased employees, commonly known as “temps,” are those workers who are usually employed from a temporary agency or leasing firm who contracts with businesses to provide workers on an as-needed basis. The temporary agencies or leasing firms may handle payroll, tax, and other human resources functions for these temp employees.
Because of the short-term nature of their work, temporary workers may be misclassified as independent contractors and are denied their rights as employees. These rights include the right to minimum wage and the right to overtime pay for working more than 8 hours per day or 40 hours per week. In addition, employees are entitled to the right to the employer’s share of the social security, unemployment and disability taxes, workers’ compensation protection, additional benefits granted by employers to employees such as sick pay, retirement and profit-sharing plans, protection from discrimination, and protection from wrongful termination of employment.
If the employer has complete control over how the worker should do the work, directs the employee what tasks to accomplish and how to accomplish these tasks, then the worker is an employee and not an independent contractor. As an employee, therefore, the worker is entitled to additional protection, including overtime pay.
Who should pay for the overtime?
It is usually the temporary agency who hired the employee who handles the employee’s payroll. Even so, if there are labor violations, a court could determine that both the temp agency and the employer are legally liable for these violations. This will occur if the court determines that the employer is a joint employer with the temp agency.
Employees of a temp agency who work for various business establishments are considered joint employees of both the agency and the business establishment in which they are employed. The law considers that each employer to whom the temporary employees are assigned is jointly responsible with the temp agency for compliance.
The temp agency is “primarily” responsible for the payment of appropriate overtime compensation since the agency actually pays the compensation. However, even though the law looks to the agency first for any liability and compliance with the record-keeping requirements, the employer for whom the employee worked overtime is also jointly liable for the overtime compensation.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the followaing areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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