Sunday, November 27, 2022

Classifying Long-Term Worker as ‘Temporary’ May Cause Problems

I hired a temporary worker a few months ago. I saw that under work classifications, a temp’s time can be extended for one additional nine-day period. Do I have to lay them off after that period?

The work classification referenced above is not a law; it is just a recommendation. If an employee stays hired as a temp for several months/year(s), it can become problematic.

Temps usually are provided with less generous benefits — if any at all. This discussion addresses putting a temp on the company payroll versus going through a temp agency.

Key Case

A key case on this issue involved Microsoft Corp. more than 20 years ago. At that time, Microsoft employed thousands of temporary workers, many for more than a year at a time. A class action lawsuit was filed on behalf of the temp workers, who claimed they stayed classified as temps so the company could avoid providing them with better benefits, such as stock options, pensions, and health benefits. (All direct hires in California now must be trained on sexual harassment prevention in a timely fashion, and are entitled to sick pay, unlike 20 years ago.)

Those temps said they felt like second-class citizens: Their badges were a different color than the regular employees, they were denied benefits, they couldn’t buy items at the company store, and they were not allowed to use the corporate health club or attend company parties.

Microsoft settled the lawsuit to avoid years of potential litigation, but this case points out the dangers of leaving workers classified as temps for too long. If workers sense that the classification is just a subterfuge to avoid paying them what regular workers make, it can become a bone of contention.

Avoid Pitfalls

Many employers use temporary workers for a number of reasons, including many very valid ones. If a company does indeed have this practice, it is a good idea to seek legal advice to avoid any dangerous pitfalls, especially if the company’s practice is to use temps for several months or longer at a time.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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