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can an employer transfer an employee to a professional employer organization without their knowledge?

Marie Private's Profile

My other half has been an on-call company contract working employee for a really big company for the past 10+ years - 2 of which inthe beginning he was paid via company check - then one day his supv said hey we're going to process your pay through a payroll company like ADP - i told him they were outsourcing him and he said he asked the supervisor and she said no your still our employee - but everytime he has applied for a position like what he is doing - he was told they couldn't hire him because he is an outside contractor - which he is not -- can they just do that to him like that - he is mild mannered so never really speaks up - but I don't think this is right -- the last time he applied the HR person told him there was something wierd with his file because he showed with a company employee number but also as an outside employee -- and they never told him anything - i asked him if he signed anything and he said no but one day the supervisor came over and asked him to sign a note for his wages while it was busy and he asked her to wait and she didn't - she proceeded to hurry him up and rushed him to sign it. Is there anything he can do???? He's not an independent contractor and he doesn't have his own business and they have given him raises and even took his on-call and shift differential pay when they transferred his payroll. This doesn't sound right - who can we call?

Answers

Topic Expert
Regis Quirin
Title: Director of Finance
Company: Gibney Anthony & Flaherty LLP
LinkedIn Profile
(Director of Finance, Gibney Anthony & Flaherty LLP) |

ADP offers several services - payroll processing and PEO (co-employment arrangement) are two. The fact that your spouse received an ADP check does not mean they have been outsourced. I would call each employer to validate employee status. One should confirm and one should claim they have no knowledge of the employee. The final proof will be at the end of the year, i.e. what is told to the federal government. But I do not recommend you wait. The paperwork to join a PEO is pretty extensive, as you are joining a company. A quick signature should not trigger a change.

Marie Private
Title: Spouse
Company: Employee
(Spouse, Employee) |

Thank you Regis & Keith - I appreciate the feedback :-) I'm not sure if I explained myself correctly - I was really upset - but my husband doesn't get checks from ADP - his supervisor said that they were going to outsource his payroll to a company like ADP - but it's not ADP. My husband was hired as a company employed contract on-call employee through this HMO - he was on their payroll via their company checks, he was paid on-call wage plus shift differentials - when his supervisor asked him to sign a form (only one form) she said this is for your pay, the payroll is being outsoruced but you are still this HMO's employee. He asked for copies and never received them. He did ask the HR department to view his personnel file and there wasn't anything in there - another friend of his knows one of the compliance officers (I think) who was looking into his information because they thought it was weird that when he covered for certain regions his boss would recharge like if he was working for an agency - long story short he was advised by his friend that this person was advised to stay out of it and leave things alone. Everyone can run things as they wish, my thought is can they do this to him without advising him of what they are going to do especially if when he was hired on they had talks about becoming permanent and she gave him raises? If indeed they sent him to a PEO can they just send his information over to a 3rd party without proper notification? If indeed this is a co-employer why would it be held agaisnt him when applying for other internal jobs?? The whole things makes me ill. He was asked to apply for some positions because he's been there 10+ years and finally this last time someone in HR advised him that his status in the company froman HR perspective was odd because he showed with an employee number but as an outsourced employee - which is why they advised they couldn't give him the job he is currently doing as an on-call contracted HMO employee full-time. They had to come up with a reson so they advised they went with someone who had more experieince. Thankfully this last HR person advised my husband of whay he may be being looked over and this is why we started investigating and trying to see if anything can indeed be done :-( We sent letters asking the PEO for copies of paperwork and how it was that he ended up on their paperworok and they finally advised after a 2nd request that the HMO had changed him and that he is now the PEO's employee and has been since the change - I know that time is of the essence, and that maybe my husband has waited too long due to statues of limitations and what not, but strictly on principle there's got to be something that can be done. He is not very articulate and more of a "let my work do the talking" type of person, but that shouldn't be held agaisnt him. We sent the HMO the same letter and still have to hear from them. His supervisor had at one time started asking him to send in invoices and number them for his hours worked and we advised that he didn't have his own busienss nor was je an independent contractor to be invoicing people for his time but that we could submit a time card for hours worked as requested per management as to specific jobs/and events - he kept submitting time cards but in the margin placed a comment "as directed by management". In reading Keith's comments, I do have many e-mails where he and I both advise his supervisor to advise as to what happened and why is he not getting regular payroll checks like before and they never answer - and when he did talk to her, she keeps insiting they are just like a payroll company and avoids the questions. I don't know if I make any sense, I just don't know where to start looking or who I can possibly talk to in order to get some assistance. Again, it just doesn't seem right that an employer would do something like that and not completely advise the employee. He's been waiting for a long time for an opportunity and it just hurst ------ the question you might have is why did he wait so long,,,,,and I don't know if that would harm him,,,,but he waited this long and didn't really start asking questionsuntil the recession hit ---- In the begnning and upto until maybe the last 2 years - this HMO has been his only consecutive soruce of income - all of a sudden they started to cut his hours and when the jobs did become available, he applied, but to no avail. He is a Ferdinand the Bull,,,,,big, quiet and with a big heart. He doesn't like confrontation in the workplace and had always felt that they would take care of him and they weren't doing him bad, and they would keep their word, etc. etc. but after he received the response from the PEO on the letter we sent, he's having a little change of heart and that is why I posted on this board - to see if there is anyone out there who might have an idea, might know the laws regulating PEO's etc. Anything will help!

Please advise.

Thanks,

Marie
(Caring Spouse)

Topic Expert
Keith Perry
Title: Consulting CFO and Business Operations A..
Company: Growth Accelerator
(Consulting CFO and Business Operations Advisor, Growth Accelerator) |

Marie,

Generally speaking, no.
To Regis's point, the question is who is the current employer. A PEO transition can be done quite swiftly, and given the story I can see that happening.

The way to figure it out is to contact ADP and find out his employer (they're obligated to tell the truth).

If he has been transitioned to a PEO without reasonable consent, then this is very likely actionable. It of course depends on the State of residence/employment. In California it is possible that if he signed a PEO contract and did not know what it was, that agreement would be thrown out.

A PEO is not a bad thing, but it *sounds* like it is being used in a negative way, specifically the "contractor" status, which along with not being able to transfer within the company could affect stock, bonuses, etc. On the flip side, I've done PEO where it is only a statutory legal relationship for insurance & benefits, and the employees retained full rights as company employees for seniority, stock options, etc.

I'd check with ADP, find out who the employer is. If it is just a misunderstanding, his HR should be able to fix it. If it he is actually a contractor now, start assembling all the information you can get, and determine if you have cause to take action. At that point, you might want to retain counsel.

KP

Marie Private
Title: Spouse
Company: Employee
(Spouse, Employee) |

thank you Keith, please see above :-)

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