In Staffing Industry Analysts’ Certified Contingent Workforce Professional (CCWP) classes, certification candidates take part in a “myth and reality” activity around various co-employment mitigation and industry practices. One of those practices is using engagement tenure as a mitigation bulwark to guard against co-employment risks. At this week’s CCWP class in Las Vegas, the industry practice statement presented certification candidates was: “Placing term limits on length of assignment for temporary employees will eliminate most forms of co-employment risk.” The candidates had to discuss the issue and determine whether it was a myth or reality.
In many circumstances and at many levels, this statement is a myth. However, length of service is part of the legal rationale for the US Supreme Court’s decision in Nationwide Mutual Insurance Co. v. Darden, in which tenure was a limited supportive factor in determining co-employment, compared with more critical, influential definition issues of control, skill required to do the job and source of instruments and tools. The core point is by the time a definitional judgment gets to the element of tenure of the engagement, the “horse has already left the barn.” The case defining co-employment, or not, has already been decided long before the engagement tenure is considered.
Further, the prime mitigation strategy against the consequences of co-employment is ensuring your corporate, central “benefits plan” document clearly defines non-employees and specifically eliminates them from full-time employee benefits/equity profit plan share rights. If confronted with a co-employment challenge, a core mitigation bulwark is defining proactively contingent workers out of any rights to your full-time benefit plan portfolio. That’s because if a contingent worker is ever deemed a co-employee in an adjudication process, the next step is examining how the central, corporate benefits plan documents define who has benefit rights, and who does not. This corporate benefits plan document rules, unless there is a benefits plan qualification dispute, in which case a tenure policy might then have an impact.
While tenure policies may other valid business purposes, they have a limited roles in mitigating co-employment if the corporate benefits plan documents do not specifically eliminate participation by contingent workers.
This article does not constitute legal advice. It is recommended that you consult your internal company counsel prior to establishing any policy or entering into any agreement. For more information about Staffing Industry Analysts’ CCWP Certification Program go here.