Laid off, rehired as contractor with no benefit

[OrangeATL]

What is the name of your state (only U.S. law)? Georgia

I was laid off from a large company in December 2015. They provided a severance package, which included benefits (health insurance) until April. At that time I had to pick up myself.

In May, they called and asked me to come back to work -- doing the exact same job, same department, same everything**************.. except no benefits and less pay. I needed the job and money, and even those I was very irritated I was doing the same work I was doing 6 months earlier and getting paid half of what I was making, I took the job.

I've been working 40 hours each week since June - without benefits. They recently did allow me to go back into their 401K plan, but no offer of anything else... health, paid time off, sick leave, etc.

I tried to understand/read the law per Obamacare on offering employee's health... and I know that 30 hours is a magic number.

However, do they have to offer me insurance if they classify me as a "contractor"? Note... I guess I am a self employed contractor, since they just hired me and are paying me. Is there a difference between part time and contractor? Is this all just legal terms to avoid paying health benefits? What, if any, rights do I have to benefits?

Any help would be appreciated.

Thanks

 

[justalayman]

Are they considering you and independent contractor or an employee? Do they withhold taxes from your pay?

 

[OrangeATL]

Are they considering you and independent contractor or an employee? Do they withhold taxes from your pay?

Yep... they withhold. I don't really know. Following is the parts of the offer letter I think are relevant????? Like I said, I'm happy to have the job, but it does rub me wrong that I'm doing exact same work, everything is the same, except less pay, no benefits...

Thanks for any help.



We are happy to present you with this offer of employment. The attached offer letter will provide you with confirmation of the details around this offer.

Following this email, you will receive a separate email from Hire Right which will allow you to complete your Employment Eligibility Verification (I-9) form on-line.


THE LETTER
This letter is to follow up on discussions regarding the offer of temporary employment ... blah blah blah

Therefore, if you choose to accept this offer, you will be able
to begin working in your new position on the start date that we discussed... blah blah blah


You will also be eligible for overtime. You will be paid bi-weekly. All payments are subject to all withholdings and deductions required by
applicable law. blah blah blah


This letter is not an employment contract and if you accept the offer, your temporary employment
will be on an “at will” basis, in accordance with Company policies.


We look forward to your accepting this offer and joining our Company! Please do not hesitate to
call if you have any questions.

 

[davew128]

You're not a contractor. Whether they need to provide health insurance as a benefit depends on facts not provided here.

 

[justalayman]

Gleaned from the net


As of January 1, 2015, employers with 50 or more full time equivalent (FTE) employees are required to provide health coverage to full-time employees or else pay a tax penalty. This is commonly referred to as the employer mandate.

If they are required to provide insurance, that is the only benefit they are required to provide. Along with that, if you would not be happy with the wage offered, you shouldn't have taken the position.

 

[OrangeATL]

Thanks for the info. Not sure what else I need to offer up as explanation, etc. That's pretty much all there is. That was pretty much the entire offer. This is a very white collar professional position; the company had major lay offs in Dec. without much thought to the actual work being done. The department I was in got hit hard, and seems the "new" department head realized that they laid too many people off ... in fact, I was in a meeting where the words were like: We realize we probably made too deep of cuts.

I really wanted to tell them no, but at my age, I was having a difficult time finding a comparable position (I know, there shouldn't be age discrimination, but that's a difficult one.) One of the people I worked with knew I was having problems finding a new position; they talked to the new head of the department (since the folks left were extremely overworked, and they could not handle all requests coming into the department.) So she told them I may be available. They offered the position, telling me there was a limited amount of money in the budget they were "sitting aside" for a temp position; I was supposed to work until that money "ran out."

It was set to last until the end of summer - end of July (assuming I worked about 30 hours a week.) I worked more.

Then I was told that they needed me until at last the end of August. End of August came, and was told to keep working. That's pretty much what I've been told. I have complained a little, but I need the job and money. I AM NATURALLY hunting a new position (I would think few folks would want to work for a company that took this road.)

So here I am. Working my 40 hour weeks (and know I've already said it, but I am doing exact same job I was doing last year.)

Everyone else there is now signing up for open enrollment... but nothing for me.

I guess the big question... should I contact a lawyer or just keep my mouth shut, be glad I have a job, and bend over? lol

Thanks

 

[cbg]

I'm asking these question for a reason; it's not because I doubt what you're saying.

Are you working 40 hours every week? If not, how many hours do you average in a month?

Are you considered temporary? If so, do you CURRENTLY have an anticipated end date and if so, what is it?

Exactly how long has it been since you returned to work?

 

[OrangeATL]

I'm asking these question for a reason; it's not because I doubt what you're saying.

Are you working 40 hours every week? If not, how many hours do you average in a month?

Are you considered temporary? If so, do you CURRENTLY have an anticipated end date and if so, what is it?

Exactly how long has it been since you returned to work?

I understand! And thanks for the advice.

Starter the first of June 2015. The first couple of weeks of June, I worked probably 30 / 35 hours. Since that time, I have averaged at least 35 per week (I say 35 only due to the fact that once in a while I would take a day off to interview for a job elsewhere, family emergency, etc. However, since the end of June, I think I have only taken maybe three days.) Otherwise I work each day, 8 hours a day, typical white collar hours. If I get in late, i.e. 19, I work until 7 (depending on lunch break). I have to log my hours into their online system; paid every two weeks.

I assume I am considered temporary... that was what was originally in my offer. As I mentioned, I was told I would be temp, and basically I could work until their "pool of money" was used up. I can't recall the actual amount they put aside for me in their budget. I remember talking with current supervisor about this, and was told I could work as much or little I wanted each week... i.e. if I wanted to work 3 days I could... or more if I wanted.

I talked to her, and decided I would like to work three days in order to just physically be at work longer.... i.e. the original amount of money put aside allowed me. --- I want to say it was 15K that was set aside. I was hired at an hourly rate, and once that pot of money was gone, I was supposed to be gone.

But I only worked 3 days for the first two weeks. After that, they asked if I could just go ahead and work 5 days. (This was all informal, and was just what my supervisor's boss == the VP--asked me.) I said sure, and asked about how long. He wasn't sure. It depended on if they "found more money."

But he said I should go ahead and work as much as possible while the money "was there" and we could worry about that later.

Well, the original amount of money has been long gone.

Everyone travels a lot, and I've been reluctant to talk to anyone for fear they would all of a sudden "realize" they money was gone, and I would be gone. So I've kept my mouth shut.

However, I did talk to the VP and told him it was almost demoralizing coming in, doing the same job I was doing last year, same job everyone around me is doing, and getting paid less that half what I previously made. He acted as if he didn't realize I actually made so little (it's almost like no one knows what is going on....) I assured him I was, and in fact, just sent him a little reminder a couple of weeks ago where I went into the online system and copied my salary history over the past 8 years (I'm still in their system, I've just been move to hourly instead of annual...)

I only know that my security badge is "up" in December. I asked something about that and was told... "well security told us we had to have an end date on your contractor badge, so we told them December.)

It's all very "loose"... and as I said, since I need the money, I don't want to make too many waves for fear they cut me... but at the same time, I hate feeling I'm getting screwed. Basically I'm figuring out if I have any leverage when/if I go to them and say "do something for me."

Sorry so confusing, but it is also confusing to me. Part of me wants to walk out and say "so long"... but then I become more realistic and think I can't do that without another job lined up.

Again, thanks for any advice.

 

[LeeHarveyBlotto]

What is the name of your state (only U.S. law)? Georgia

I was laid off from a large company in December 2015.

Is your real name McFly by any chance?

 

[cbg]

Last question, and I promise this is the last one. I apologize for not including it originally.

Do you, yourself, in your gut, believe this is a temporary position? I know you were told it was, and I'm not going to ask you for proof or evidence. All I'm asking for is your, as the only person in this conversation who knows the people and the job, best estimate of whether this is truly a temp position that got extended and will come to an end within weeks or months, or whether this is REALLY a full time permanent position that has been, either deliberately or in honest miscalculation (I won't ask you to judge that) misclassified.

I truly am going somewhere very specific with this.

 

[OrangeATL]

Last question, and I promise this is the last one. I apologize for not including it originally.

Do you, yourself, in your gut, believe this is a temporary position? I know you were told it was, and I'm not going to ask you for proof or evidence. All I'm asking for is your, as the only person in this conversation who knows the people and the job, best estimate of whether this is truly a temp position that got extended and will come to an end within weeks or months, or whether this is REALLY a full time permanent position that has been, either deliberately or in honest miscalculation (I won't ask you to judge that) misclassified.

I truly am going somewhere very specific with this.

My feeling is that after the first of the year, they will offer me a full time position. They was a comment or two that that was their idea. However, I also feel that they will use this opportunity (i.e. that I took a "step down" to offer me a position less than what I was previously making, at a lower level, with the excuse/reasoning that I took the lower position originally thus I would take this; they will later on promote me (that is a difficult thing at this company), etc.

I'm only a few years from retiring... therefore, I could try and retire early and just find a pt job elsewhere... or just go ahead and accept this and let it go.

Some smart ass said something about McFly above, and to some extent that is how I feel. However, if you need money and a job, you do what you have to do -- no matter how much you would love to tell them to *** off. I do hate the prospect of having to go to work each day and feel this way.

My honest feeling is that the company used this lay off to help push older employees out the door. The overall age of my department went way down after the layoffs. I am SURE their lawyers made enough cuts with the young folks to prevent any suit on this...again, we're talking about a Fortune 500 here...

I liked the folks I worked with, the department, however the immediate management (as well as everyone) is almost fearful of their own jobs, so no one wants to "rock the boat." So no one is going to push/question anything if they don't have to.

 

[ShyCat]

Some smart ass said something about McFly above...

Chill. It was just a time-travel joke (as in "Back to the Future") since you said you were laid off in December of this year. I suspect the poster was merely trying to lighten the mood since you are so understandably stressed.

 

[cbg]

I am only addressing the benefits question. What pay you are offered is a completely separate question and subject to an entirely different set of laws.

But on the health insurance question, based on everything you have told us, my immediate recommendation is to go into a holding pattern, as it were. I have 36 years of experience in employee benefits and have had specific training on ACA requirements, and I can't tell you for certain if they're supposed to be offering you health insurance. I think it likely that they are, but to be certain I'd have to see their full plan document and some of the definitions contained therein. The odds favor, however, that they are out of compliance.

Let me tell you what that means to the employer. This year, in 2015, if they have 100 full time employees they are supposed to offer insurance to no less than 75 of them (and if fewer than 75 are eligible based on their definition then they have to change their definition). If they offer insurance to 74 of them, and the 75th (you, presumably) files a complaint, they could conceivably be fined $2,000 per employee. Not, just the employees who did not have insurance offered to them. All employees. So if an employer with 100 employees is found to be in violation by even one employee, the fine would be $200,000. Next year, in 2016, the percentage of employees who have to be offered coverage goes to 90% and the fine per employee is raised to $3,000.

I am not saying this to blow my own horn; this is just a simple statement of fact. Of the regular responders here, I am probably the best qualified to answer this particular question. This is what I do for a living - I administrate employee benefits, and I have done so for three and a half decades. There are others here who are better qualified than I to answer criminal law questions, or traffic law, or family law, but I'm your go-to girl for benefits questions. And I can't give you a definitive answer on your eligibility. I can give you odds, but I can't give you a definite.

Because I can't give you an absolute, I'm hesitant to tell you to sue the employer for what is (probably) rightly yours. If the employer is deliberately withholding benefits from you, then I'd love to see them tossed to the wolves. Nothing (nothing employment law related, at least) makes me angrier than employers deliberately cheating their employees. But I can't even say for sure that you are owed benefits, let alone that they're being withheld deliberately. The rules are confusing and I'm quite sure that there are employers out there who truly believe they are in compliance, are trying to be in compliance, but simply are misunderstanding something and are out of compliance by honest error. Yours could be one of them.

Since you like the job and since you think you're going to be offered something full time after the first of the year, I'm inclined to suggest that you wait until then before you take action. If you act now, then right or wrong you're unlikely to get that offer, and you need the job. If they don't make you full time and continue the extension of temporary, you can always act then. But you don't want to win the battle and lose the war.

If you are so inclined, it also might not hurt for you to have a quick consultation with an employment attorney. Ultimately, the choice on when or if to act is yours.