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Microsoft Loses Temp Appeal
Robert Wilde writes "The Supreme Court has turned down Microsoft's appeal of a ruling, allowing 10,000 temporary employees to sue for benefits such as the right to purchase Microsoft stock at a 15% discount. This lawsuit has implications for permatemps throughout the tech industry." I'm actually interested in seeing how many of the temps take Microsoft up on buying stock options.
Microsoft did *not* lose an appeal here; the Supreme Court simply refused to hear the case--as it does with 99% of the cases that it is offered.
This generally gives *no* indication as to how the court would rule on the issue. Frequently, the court waits for conflicting opinions from differant appellate districts until it hears a topic.
For microsoft itself, it's the same result as losing--the lower court opinion stands. As for the future, however, keep in mind that the 9th district is the most frequently overrulled district in the country . . . (or at least it was last time I checked).
I know that at many companies, employees are hired on as temps and carry at least the workload of the full-time staff. So far as I'm aware, this lawsuit affects the more professional workers (contractors) as well.
There are quite a few corporate entites which abuse temp status. Temps and contractors do not need to be supplied with benefits of any sort in most countries, and this results in mean ol' companies abusing the law. In Ireland, for instance, many companies hire employees to 11 month fixed contracts, at which point they are dismissed. This is because beyond 11 months, they become eligible for benefits. I've also seen companies over here where 'Temporary' employees hold a fair bit of seniority (1-2 years).
In my belief, Temps and Contractors shouldn't be eligible for benefits if they are brought in strictly as relief staff or additional manpower for a fixed, brief period of time. At Microsoft, however, this does not seem to be the case. They've abused the worker classification of those employees strictly to avoid health benefits, stock options and even, IIRC, a decent lunch.
So more power to the people pressing this suit. I think they're doing it for the right reasons -- they've done the work of permanents, held the term of permanents and all they've gotten in return is a sort of lofty disdain from proper (Salaried and optioned) Microsoft employees.
Another bit of blood on the nose of Microsoft, I suppose. Still, this is something that has been played out, though for basic rights like a minimum wage (not lucrative stock), for years in Big Industry.
For those of you who are wondering about the proper classifications of Temporary and Contractual employees:
Temporary: A temporary employee is one who is maintained on a rolling contract and paid a fixed wage based on time worked, generally schemed around hours. They often get the short end of the benefit stick, not even getting paid sick leave and having a rather paltry amount of holidays. Generally, temps will be provided by staffing agencies. Temporary staff are often abused by rolling their contracts for week after week, keeping them on as 'Temporary' employees despite having reached the point where they would carry seniority if they were a Permanent employee.
Contractor: A contractor is a bit different, as their pay scale can be done hourly, weekly, daily or project-based. They are employed on a fixed term contract, and their billing varies as much as their pay scales. The abuses to contractors occur in much the same way as those to temps. A contractor is employed for a specific project, then the project term is extended or he is transferred to another project team, and so he remains a contractor, although he is obviously acting outside of his original contracting brief. I've seen 'Contractors' with more say in a company than the director of IT, and yet they're still working off of their base terms as far as benefits go. And that means that if the company they helped create runs an IPO, they're not entitled to a bit of it.
As mentioned above, from what I can tell MS purposefully abused these designations in order to save a buck or two.
-l
I find it terribly interesting that people shout back and forth about "I'm an employee!", "I'm an independent contractor!" or some other such thing without the foggiest notion of what they *actually* are. In fact, the definition of employee and of independent contractor are matters of law. No contract that you can sign between yourself and someone who pays you money can change that. If the contract says you're an independent, if both parties agree you're an independent, if nearly everyone accepts that you're an independent BUT your individual circumstances meet the definition of an employee, then you ARE an employee. Period. You can sign contracts and make agreements to the contrary all day long and it doesn't matter one whit.
Different agencies at the federal, state, and local level work under different statutes. And yes, they are a mess, generally using vague language that may well result in someone being an employee to the Internal Revenue Service but an independent contractor to the Department of Labor. Or vice-versa. Most agencies, though, wind up falling back on the 20 common law factors used by the IRS or a variation thereof. (That situation is in flux right now, but the 20 common law factors still rule for tax purposes, even if the new kinder and gentler IRS is so gun-shy that they're not really enforcing them.) Take a look at them on IRS Form SS-8, Determination of Employee Work Status For Purposes of Federal Employment Taxes and Income Tax.
Work through that form and you might be surprised. I think a lot of "independent contractors" will find that they are actually employees. And if they're employees, aren't they entitled to the benefits a company extends to employees?