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HP Contract Workers Sue For Recognition
manganese4 writes "The Idaho Statesman is carrying the story of 33 local Boise HP contract workers suing HP. They claim that they were expected to perform at the same level of expectations as HP workers and thus should be given the rights and privileges of HP workers. HP claims the suit is without merit." From the article: "The suit seeks to represent 3,000 workers in Boise and elsewhere in the company and could involve as much as $300 million, according to the complaint."
Jennifer Miller of Nampa is one of the plaintiffs. Miller said she was employed by HP in Boise from 1989 to 1995, when she took a severance package and left the company. She returned later in 1995 as a contract worker and worked at HP until March 9. Part of the time she was a contract employee through Veritest and Manpower Professional. Her jobs included testing software for HP printers.
Umm, I have never heard of anything like this before. Temp agencies hire employees, charge the companies their employees work at, and then pay (and give benefits if applicable) to their employees from that.
Since when are you owed money/benefits from a company you really don't directly work for?
I'm pulling for these guys. Companies tend to have the nasty habit of using what they call contractors to get out of paying taxes and benifits that they really should be. If you go to the IRS website and look up the rules which are used to determine whether someone is an employee or contractor it's clear that rules are being broken.
I've had my share of contract and full-time work, and I guess I'm kinda weird, because I actually read my contract. If it doesn't say I get benefits, I don't expect benefits, If it says I will, I expect benefits. Am I going to be getting a 1099 or a W2 at the end of the year? Because one is typical of a contract employee and the other is a regular employee. Regular employees typically get benefits, and the company pays the taxes. Contract employees pay their own taxes and benefits.
I am sorry but I have done contract work for over 10 years and this pisses me off. They may work at HP but they work for either their contract agency or for themselves. I didn't sue Pixar when I worked there because they decided not to put contractors in the credits. I don't expect the company I am working at to provide me with health benefits and stock options, I should get those through the agency who pays me.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
Later Apple did hire me as an employee. At that point since I believed that I was an employee, pursuant to the previously signed statement I wrote a notice and tried to deliver it to Apple's legal department. They seemed completely flummoxed as to why I was notifying them that I was an employee.
My wife and I each spent a stint with Compaq (became HP while she still worked there) and they play this game all the time. They work everyone the same, but 'badge' employees actually get vacation, 401k, etc.
It wasn't right then, and if it's still going on, good for them for suing. I knew people that had worked there for YEARS and never got 'badged'. No vacation time (although you could occassionally get time off without pay) and rarely, if ever would you get any kind of incentive or pay increase. You'd also usually get let go without warning, and the contractors would play a game of saying that you're still employed with the contracting agency, thus not entitled to unemployment benefits (which, at least under Colorado law is not true. I managed to get benefits).
Anyway, it's about time.
Karma: Chameleon (mostly due to the fact that you come and go).
The IRS rules on this are quite specific and, IIRC, Microsoft lost a huge case on this in the early 90's for hiring contractors that were, in essence, 2nd class employees.
From the article:
Huntley's lawsuit cites all 20 criteria and claims that in every case HP treats contract workers as employees.
Among them:
Does the worker have assistants whom the company supervises and pays?
Does the company furnish tools, materials and other equipment sufficient to show control?
Is the worker required to devote substantially full time to the company?
Kaupins advises companies to check with the IRS if they have any questions about contract workers vs. employees, because companies can be held liable for back taxes if worker status changes from contractor to employee.
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
Is this any surprise? If the government makes you pay a higher tax for full-time employees, then this discourages hiring full-time employees. The same with imposition of benefits for such employees: it is the government providing a disincentive for hiring the kind of employees that would get these benefits.
Is it any surprise that the companies are responding to economic pressure from the government NOT to hire regular full-time workers?
Don't blame Durga. I voted for Centauri.
Whats funny to me is that when Microsoft got sued for much the same reasons the response here was very much against the Redmond Giant. Now thats its another company the attitudes seem to have shifted against the contract workers. This is also a reason I will never again do temp work. I'd rather fish uneaten burgers out of the Burger King dumpster.
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
Yes, actually there are some who do that. It's the same at the local level, where some lawyers pay interns to stand at the local police station photocopying accident forms.
not that HP doesn't deserve, but that's not my point.
So this person voluntarily entered into a contract with HP (well, with a subcontractor of HP), with the understanding that she would be paid X dollars in exchange for Y hours work, with no additional compensation expected on either side. Fast forward a couple years and now we're supposed to let her renegotiate the contract BACKDATED TO THE START because she's changed her mind? Screw that, it's called a learning experience, next time take a FT job, not a contract.
At the bottom of the endless pile of paper work which characterizes all regulation lies a gun.
Alan Greenspan
Around here (BC, Canada) an employee is one who
For labour relations and tax reasons some employers try to put employees on the books as consultants or contractors, but their financial auditors (it's not GAAP), revenue canada auditors (it may be tax evasion), and the labour relations board smack them down pretty fast.
(std disclaimer: IANAL, IANAA, if you need a lawyer or accountant, get a real one)
There are legitimate reasons to use contractors. Like when you temporarily need a few extra people at crunch time. Or there's a specialized task that it makes sense to outsource.
But a lot of contractors are doing jobs that are really part of the permanent organizational structure, often working side by side with permanent employees who do the same work. Technically, they're temporary people who work for themselves or for a "job shop". But their contracts are often extended for years, and the person who supervises them and decides they ongoing future works for the company, not the job shop.
I've never quite understood why companies "hire" so many non-employees. My best guess is that inept managers can't figure out how to justify the head count they need to get the job done, but somehow manage to get "temporary" funding for contractors.
Being that kind of long-term contractor can be maddening. There may be campus facilities, like a gym, that you're not allowed to use. There will certainly be bennies -- matched 401Ks, stock options, tuition reimbursements -- that you won't be eligible for. And then there are the intangibles...
I once worked for a year as a contractor helping clean up a doc set. (The guy who replaced me in this "temporary" job is still there -- 6 years later!) My work helped earn my writing team an award for "improved documentation." Some of the improvements cited were done at my initiative. But because I was a contractor, I wasn't even invited to the ceremony.
A lawyer who helps defend people against this kind of abuse is not "slimy". He's simply helping people defend their rights.
First, let me say that I have been an HP supporter for many years, but my support has waned through the Carly years.
I subscribe to the point of view that HP likely has violated the law and is simply using these contractors as a way to avoid having regular employees on the rolls. It may or may not be less expensive to have contractors rather than employees doing the work. It most certainly is more flexible since contractors can be let go for no reason at all and with little recourse or potential fallout. It does keep headcount low which is a favorite with financial types.
I suspect many of these contractors took the contract many months or years ago with little expectation that it would continue this long. They've likley received no pay raises in that time and are feeling a bit mistreated. I'm an independent contractor and I understand their feelings. Where else in Boise does an IT contractor find work?
My main concern here is why isn't the DOJ or DOL prosecuting this suit? Seems to me questions of employee vs. contractor are settled via federal law and the feds ought to be pursuing alleged abuses, not the individual contractors.
On the one hand, the Big Business In Bed With Government mentality that runs this country wants to avoid any type of national health care. They insist that is a job for the private sector. They shut down Medicaid, medicare, any chance at national health plans. "See," they say, "your employer should provide that. It is not a proper job for government."
... have you ever shopped for an individual health plan? Good god almighty that is expensive! You know how much less it costs when a company buys it for their employees? I swear it stinks. It's as if individuals are subsidizing businesses. It really stinks.
So I tell you what
So people try to organize labor unions, like at Wal-Mart, or they try to get full time jobs, like at H-P, in order to get that health care. And guess what? Wal-Mart closes stores rather than deal with unions. H-P hires contractors to do the same work so they can avoid having to pay for health care.
You know, life sucks, but it doesn't have to suck that bad. That's why I applaud lawsuits like this, and consider those lawyers top grade on the morals scale, or at least they have better morals than the politicians and their corporate rulers who don't miss a chance to stick it to people who work for a living.
Infuriate left and right
So this person voluntarily entered into a contract with HP (well, with a subcontractor of HP), with the understanding that she would be paid X dollars in exchange for Y hours work, with no additional compensation expected on either side. Fast forward a couple years and now we're supposed to let her renegotiate the contract BACKDATED TO THE START because she's changed her mind? Screw that, it's called a learning experience, next time take a FT job, not a contract.
So you've seen the contract and it says that Loser X will work N hours for $P pay? And Loser X worked N hours for $P pay? If thats true, then the suit really is baseless. But take a look at the behavior of the electronics industry with respect to its contractors recently: We have EA, for example, who worked people for 60-80+ hours a week, which was by contract (expected overtime), then at the end of the project said, "Yeah, I know we usually let you comp all that overtime after a project is done, but I think we'll just take our overtime back this time and not give you any time off or any extra pay, and assign you to new projects". Hardly "fair" "legal" or "by the contract" by any stretch of the imagination.
So the way I see it, there MIGHT be merit to the case. They could be working these contract workers overtime with no overtime pay or comp time, they could be assigning them jobs above and beyond their contractual role, if they're hourly they could be forcing them to "touch up" their time sheets, or any number of other abusive things. They may have been told the positions were contract-to-hire. Work for us 3 months and we'll hire you as soon as possible (4 years ago). The subcontractor may have misrepresented themselves as HP, rather than as a subcontractor. They may have gone for years unwilling to rock the boat thanks to the shitty economy.
Or it might just be a bunch of whiny brats who decided they wanted to be FTE's after all. They got themselves a fancy lawyer and figured that what they couldn't get from the HR department they'd take from the company's hide.
Either way, we'll see the truth when it comes out in the courts.
If I have been able to see further than others, it is because I bought a pair of binoculars.
Employment law supercedes contracts quite often. you can't contract for something that is illegal, and it is illegal to treat people in certain ways, even if they agree to it in writing.
If the employment terms can't pass certain tests that distinguish them (the contractors) from the regular employees, then regardless of contract, they are employees and deserve the same benefits that a regular employee enjoys.
If it was simply a contract dispute, you'd have a point. If the argument is that the contract is illegal, or meritless in certain areas, then you don't. And without seeing the contract, and the full text of the labor laws of Idaho, speaking from knowledge based on osmosis from your wife is slightly ill-advised.
I've had two positions (two different employers) where I worked on-site with government agencies. I worked side by side with regular government employees and other sub-contractors in both cases. Does that entitle me to full government benefits? I'd love to have some of the health and training benefits offered by government agencies.
In my opinion, contract employees should only receive the benefits offered to them by their employer, not the company or agency they may actually work at. If you don't like the benefits you have, then switch jobs. Companies/agencies hire contract workers for various reasons:
handle extra work
partnering with minority businesses
internal hiring practices may be too strict - hire/fire easier with contractor
cheaper labor rates due to competition between contractors - let's face it, some companies/agencies are "bloated" (i.e. unions, legacy business units from mergers, or whatever other reasons people's benefits/pay increase beyond similar rates by other companies)
You hit the nail on the head -- it doesn't matter if a company calls someone a contractor or not -- they are a contractor if they meet certain criteria, otherwise they are employees.
You can look here for some information on how Idaho figures out if someone is an employee or a contractor.
Company's also like to classify people as "exempt" to avoid paying overtime -- but again, it doesn't matter whether the employer calls someone exempt or not -- it all depends on whether or not someone can meet the criteria of being exempt.
If these people really meet the definition of contractors, and are just now complaining, then the hell with them. But if they are really employees, well, that's why we have labor and employment laws.
I'm pretty much a free-market type of guy, but unfortunately you just can't put an employer and an employee on equal footing as far as bargaining power is concerned -- the employee almost always needs a job more than an employer needs to hire that particular individual -- so we have labor and employment laws to keep the employers from completely screwing their employees...
"That's not even wrong..." -- Wolfgang Pauli
So this person voluntarily entered into a contract with HP (well, with a subcontractor of HP), with the understanding that she would be paid X dollars in exchange for Y hours work, with no additional compensation expected on either side. Fast forward a couple years and now we're supposed to let her renegotiate the contract BACKDATED TO THE START because she's changed her mind?
But a contract isn't valid if it requires a law to be broken. And in all states in the U.S., you can't just call someone a contractor and have that be the end of it -- every state has there own checklist of what is a contractor and what isn't. Just because you have someone sign a contract saying they are a "contractor" doesn't mean that contract is valid -- they actually have to meet the test to be a contractor.
It's like the whole exempt versus non-exempt worker -- employers like to classify workers as exempt, so they don't have to pay them overtime. But the laws don't let the employer decide who gets overtime and who doesn't -- there are a set of rules that define what the duties of an exmpt employee are, and if an employee doesn't meet that test, then classifying them as exempt is against the law, and any contract specifying otherwise is void.
Now, who knows if these contractors who are suing meet the Idaho definition of contractor or not -- but the whole idea that a contract is the be-all-end-all is incorrect.
"That's not even wrong..." -- Wolfgang Pauli
How many posters have said "They signed a contract! They're contractors! Screw 'em!"? Those posters are idiots. With the notable exception of just a couple of posters, the ignorance here amazes me.
For those of you who want some idea what's real and what's hot air being blown by a bunch of no-nothing nerds who think their world-view should inform every business relationship in the country, listen up. IT DOES NOT MATTER IF YOU'VE SIGNED A CONTRACT. IT DOES NOT MATTER (much) WHAT THE CONTRACT SAYS.
You can sign a contract to work for a big corp wherein you swear a thousand times that you're not an employee and you'll never seek employee benefits and you're not entitled to them and you'll never sue. You and your new bosses can sing from the mountaintops for a month that you are not an employee. And none of that matters.
Employees are defined by law, not by some silly piece of paper drawn up by the legal department at MegaCorp. If you meet certain criteria, you are an employee. It doesn't matter if you and your bosses agree differently. It doesn't matter what the contract says. If you meet the criteria, you ARE an employee. Period. And if you ARE an employee and your employer is treating you different from other employees (by, for example, referring to you as a contractor and not giving you benefits), then you've got a reason to sue.
Those criteria are found on this form. Read it and learn something and quit spouting off about stuff when (most of) you obviously have no idea what you're talking about.
PS - What really amazes me is how many of you guys are posting "I'm a contractor and..." stories. Reading your posts makes it crystal clear that you often haven't a clue what the definition of "independent contractor" is. And you're making your living as one?!? The mind boggles. It really does.
Apply for a job.
A lot of people are afraid to be contractors, because of a mythical notion called "job security." They think that if the economy suddenly collapses their company will protect them while contractors starve. These people don't get out enough.
If you do a little arithmetic you will find that the amount you get paid over an FTE employee far exceeds the dollar value of the gym, paid vacation, insurance etc. If that's not the case you are with the wrong agency. Forget the award ceremony and take yourself out to dinner every time you deposit a paycheck. By being a contractor you are beating the system. Don't let the system convince you otherwise.
The Internal Revenue Services uses a list of 20 criteria to help determine a worker's status, but Kaupins said those criteria come down to three main points: Does the employer have control over where you work, what time you work and what you work with?
These employees had requirements that should not have been imposed on contractors. They had all the restrictions of salaried employees, but none of the associated benefits. And that's wrong, especially because HP pays less in taxes for each contract employee.
Si la vida me da palo, yo la voy a soportar Si la vida me da palo, yo la voy a espabilar
No, nobody's being abused.
I was a contractor for ten years, and I've been a full-time employee for the last 12. As a contractor, I understood that I got an hour's pay for an hour's work. Period. I arranged my own vacation, insurance, and everything else that employees get as benefits. It was my job to ensure that my billing rate was high enough that I earned a good living after paying all those expenses, and I did. I earned a VERY good living, usually a lot better than my employee counterparts.
I quit contracting because I got tired of doing the lowest-level scut work that nobody else wanted, and now I earn a good living as an employee, but I have no illusions about loyalty or job security.
If I was abused by anybody, it was by the contract houses, who skimmed (or tried to, at least) an excessive amount of my raw billing rate as pure profit for them. Needless to say, when I found a contract house that treated me like I might actually know how the business works, I stuck with them.
The reason we put up with what companies dictate (in terms of pay and benefits) is generally because we don't have the muscle to push companies while they can push us (this is the original reason unions came into existance). But let's face it, we need each other (companies need people to work for them, and people need to work for companies). But when one side seeks to change the relationship to maximize their profit, why are we all surprised when the other side tries to push back. Some of you think the position of the contractors in this case is unethical. But can you tell me that corporations are always ethical when money is involved? If you say yes, I call bullshit. Everyone, people and corporations alike are all as ethical as they have to be when money is involved (or not as ethical as they can get away with).
Anyway, I say let them get as much as they can out of HP. Same goes for anyone else in that position. At least until some long term loyalty to employees is shown again.
-- I ignore anonymous replies to my comments and postings.
This is great for you but most of the contractors that I know are not in that situation. They are working for lower pay, little vacation time, have performance reviews without raises to follow them up. And are not contractors by chioce... They have families, homes, and long technical backgrounds. They are forced into accepting the lower wages in order to try to take care of there families. They have no benifits and insurance options that cost them half of thier wages, which are usually 10 to 20% below tha national average. We are not production workers we are engineers, techs, and managers that have watched long term employees be layed of and then come back the next day as a contractors for half the pay because there are no technical jobs out there. We take jobs with contracting agencies because they are are only option next to working for minimum wage and losing everything we own. We are struggling to survive. Most of us have spent several years in the industry and it is all we know. Most of us love the job and we are not looking for a quick buck. We are frustrated with seeing contractors being taken advatage of because of a bad economy.