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Are Employees of an employment agency loaned out to Client Companies exempt from being categorized as an employee of the client

Los Angeles, CA |

I know that there are certain requirements that must be met legally, for an 'independent contractor' not to be considered an employee in the eyes of the law, but can such requirements/rules/definitions also be applied to employees of an employment agency that are hired out/"borrowed" as temps by the employment agency's clients?? In other words, are the laws/IRS rules about how to determine whether someone is an employee or independent contractor, less likely to be applicable to the employees of an employment agency {i.e. are employees employed by employment agencies somehow exempt from such considerations/applications/laws}.

Attorney Answers 3

Posted

The analysis is the same. California recognizes the concepts of "general" and "special" employers, as well as joint employers. In most cases, you will be an employee of the agency, as well as the client. But I agree with my colleague: talk with an employment lawyer about the specific facts of your case so he or she can determine which classification likely applies to you.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com
310-706-4177

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Asker

Posted

Thanks. If you are considered a joint employer of both the employment agency and the client company, are both employers required to pay employment taxes to the IRS for the "employee" hired??

Asker

Posted

Ooops, I meant if an employee is considered a joint employee of both the employment agency and the client company, are both employers required to pay employment taxes to the IRS for the "employee" hired??

Craig Trent Byrnes

Craig Trent Byrnes

Posted

You're outside my area of expertise. I only know enough about tax law to be dangerous. I would expect that the company actually paying you would be liable for the taxes, which is most likely the temp agency, but please don't rely on that answer, because I really don't know.

Posted

You should consult an employment lawyer, who can directly answer your questions based on specific facts. Your question seems to conflating multiple discrete issues:

1) Whether a person should be considered an "employee" versus an independent contractor?
2) What rights do employees have under state and federal law?
3) Whether an employee should be considered an employee of the employment agency, the employment agency's clients, or both?

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Posted

Here is a helpful article about dual employment and the "borrowed servant doctrine":

This answer is not a substitute for legal advice and it does not create an attorney-client relationship.  Seek the advice of a licensed attorney before taking any action that may affect your rights

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Panda Lynn Kroll

Panda Lynn Kroll

Posted

The analysis is in reference to workers compensation but the attorney you consult may use the "special" employer's liability for on-site worker injuries as an analog to the "special" employer's liability for employment torts, generally.

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