the-temp.jpgIf an employee walks like a duck and swims like a duck and quacks like a duck, is he or she screwed if an employer doesn’t treat them like a duck?

In the world of employee misclassification, the answer is yes.

Lots of you are working your tails off for employers and if you’re doing it as an independent contractor or temp but are really acting like a full time employee you could be eligible for benefits, overtime and even unemployment if the company decides they don’t need your services any more. Not to mention lost taxes that employers would be paying if you were called an employee.

While many of you may think this is a small workplace problem, think again. As many as 30 percent of employers misclassify workers; and the practice cost the government an estimated $34.7 billion between 1996 and 2004, according to the Department of Labor.

Also, a story in today’s Wall Street Journal included a small business human resources expert who called the problem “rampant.” Davis Lewis, president of OperationsInc, an HR and consulting firm, estimated that most of his clients have at least one employee who was misclassified as an independent contractor.

The federal government is aware of the problem and has been cracking down on the practice, spending $25 million in its 2011 budget on the effort, much to the chagrin of Corporate America.

So, how do you know if you’re misclassified?

This is the list of factors the government advises employers to consider in determining what your status is:

* The extent to which the services rendered are an integral part of the employer’s business;
* The permanency of the relationship;
* The amount of the worker’s investment in facilities and equipment;
* The nature and degree of control by the employer;
* The worker’s opportunities for profit and loss;
* The amount of initiative, judgment, or foresight in open market competition with others required for the worker’s success; and
* The degree of the worker’s independent business organization and operation.

While workers do have legal recourse if they believe their employer is not playing by the rules, many employees are hard pressed to quack too loud because today a temp job is better than no job at all. Hopefully, moves by the DOL and state governments to derail the practice will spook companies enough to get them considering those productive temps for a permanent cubicle in the marsh.

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