Subcontractor vs. employee

MarilynR

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

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

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

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

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)

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

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