The Contingent Workforce: Employer Expectations and Legal Realities

It has become common in the legal field for law firms to rely upon the so-called 'contingent workforce,' but even law firms need to be aware of the potential problems that can arise in utilizing 'contingent workers.' The contingent workforce provides a convenient mechanism for employers to fill essential personnel needs quickly, while not (they assume) increasing the ranks of the regular employee population or placing themselves at legal risk under employment laws. In using the contingent workforce, however, law firms, just like other types of employers, may find themselves immersed in very complicated legal issues. Such issues arise most often, although not exclusively, when an employer utilizes contingent workers to provide services which are in substance identical to those services provided by the employer's regular, full-time employees, or when such workers are not properly excluded from employee benefit plans.

Contingent workers are usually thought to fall into four separate categories. The first is the agency temporary employee. These are employees hired by a temporary placement agency, and are then assigned to work on a temporary basis at client law firms. The second category is the payroll temporary employee. Such temporary employees are actually hired by the law firm, and perform services on payroll as an employee. The third category of contingent worker is the leased employee. While resembling agency temporary employees, leased employees (hired through an employee leasing company) often perform a specific departmental function for the client law firm. The final category of contingent worker is the independent contractor, often referred to as a consultant. These individuals are typically workers who are engaged to perform specialized tasks, requiring skill, discretion and independent judgment.