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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 35320
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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This is a follow-up. We had a temporary employee who was

Customer Question

This is a follow-up for Doug. We had a temporary employee who was paid through a temp agency, but our HR director did also give them a draft contractor agreement outlining roles/responsibilities (language from that below). Neither party ever signed. We
now want to terminate the temp and are wondering if we can simply do that through the temp agency, or whether we should also do a separation/release agreement with the temp directly to cover ourselves. If we do a separation and release, I assume we can use
our usual form agreement, but just mention that payroll was handled through an outside agency? Thanks, ***** ***** render such services as Client may from time to time request, including, without limiting the generality of the foregoing: • Program management
for company-wide, highly visible programs from vision to release o Cross-functional coordination across multiple departments  o Manages multiple projects concurrently, varying in size and scope  o Effectively manages project teams in a matrix environment 
o Communicates effectively and provides clear direction and guidance to the team  o Report on progress towards milestones to executive team • Manage all aspects of the implementation and onboarding process, acting as a liaison between the customer, Sales,
Operations and Product teams o Provide excellent customer service in both pre-sale and post-sale implementations, partnering with the Sales team to understand and assess customer requirements; ensure customer satisfaction through clear communication and expectation
management o Implement processes and procedures for new shippers and carriers that drive usage and expansion o Coordinate with the Sales, Operations, and Product, teams to evaluate and resolve critical implementation barriers o Be a product expert in all aspects
of the platform; passing on your expertise to each customer so they can utilize our service to its full potential o Create, implement and maintain our SOP (Standard Operating Procedures) for each client o Generate reporting to track adherence to the SOP, reviewing
outcomes with clients regularly o Implement training process and guide team to ensure smooth and efficient implementation of products and services Schedule Of Work: The work will commence on September 21, 2015. Fees: A. Fee: Fee: $70.00 per hour and all applicable
overtime rates; paid and managed through an outside agency
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good morning,

Thanks for asking for me. Thank you for the language that I inquired about. That is invaluable to my analysis of the situation.

Fortunately, referring to the employee as a "consultant" does not make them an independent contractor under CA law, and the "contract" reads much more like a job description and initial wage offer than a true independent contractor agreement/contract, which would perhaps limit your actions as regards ***** *****

While it was certainly a mistake for the HR employee to give this to an employee which your company did not intend to retain as an independent contractor, I think in this case it is a matter of no foul, no harm.

The employee is still legally an employee, not an independent contractor and there is no specific need to jump through any hoops other than to let the temp agency know that you would like to end this employee's position with your company.

As legally you are not the employer, I don't see that a separation/release agreement between your company and the employee is necessary---and not knowing the contents of such an agreement, I would hesitate to suggest that it was appropriate anyway.

You may simply let the temp agency know that you would like to terminate the employee so that the agency can prepare the final paycheck and any final documentation that the agencies use with its employees and leave it at that. You are free to do an exit interview if that is a norm for your company, but again, as the employee is technically not your employee, it isn't necessary as part of the process.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best in 2015,

Doug

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