Subcontractor vs. employee

MarilynR · May 2001

We are a design/manufacturing company that supports a very large automobile manufacturer. We had a small 1-2 man production line that helps this customer out in a pinch.This line employed one full time employee and one temp. This production line ended 1 month ago. We laid our full time off, gave him a severance package,and notified the temp agency. We have since received a call from our customer stating that they would like our support in similar way again. We want to call back the temp agency, not our former employee. This employee has a very thick file on absences & diciplinary actions taken against him, and frankly we just don't want him back because of this. Can we legally call the temp agency and to a former employee?

Big Fred · May 2001

Good question! Our severance agreement has a clause that says the employee will not seek re-employment with our company. In the absence of such, I would consult your firm's councel. The employee could allege that by placing him in a volatile/unstable position, severing his employment and not attemping to re-offer employment was a form of constructive discharge, discrimination and the like.

Margaret Morford · May 2001

What is your company's policy on rehiring terminated employees? Has your practice followed that policy? Most companies have a call back from lay-off policy. If you don't have a policy, you should draft one that says an employee who is marked "ineligible for rehire" upon termination, will not be rehired. Make sure that whoever is marking that eligibility for re-hire box understands that ineligibility must be for justified and legal reasons, not for things like "missed a lot of work time on FMLA"!

MarilynR · May 2001

No, we do not have a rehiring policy.
In the 8 years that our company has been
in the US (we're based in Australia)
this is the first layoff we have had.
We are very small - 32 employees. Also,
none of the absences this former employee
were diciplined for had anything to do
with sickness. Overslept, missed his
ride, etc. were his excuses. This is
documented in his file. I would
like to add this position will be a
temporary, on-call position.
Legally can we use a temp agency?

Margaret Morford · May 2001

Have you ever rehired an employee that terminated his/her employment? If so, did this employee have a good work record? I believe that you can use the temporary agency given the facts you relayed. I would feel better if the laid off employee were not in any protected class. If you want to discuss further, please feel free to call me at 615-371-8200.

Margaret Morford

(BJ) · May 2001

Was the action a lay-off or a termination? Does the employee have re-call rights? Are you paying unemployment wages? You are not hiring another person, but using a temporary service for a temporary assignment. The employee was not a temporary employee. Unless there were recall rights, etc. You should be able to utilize an agency.

MarilynR · May 2001

Thank you everyone who responded to my question. We were able to find out that this former employee has another job.

Subcontractor vs. employee

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