Contingent Workforce: Suppliers of Contingent Workers

Overview

Our Contingent Workforce team represents suppliers of contingent labor, not just the companies that use those workers. Our clients include suppliers of temporary W-2 workers (staffing agency model), gig workers and independent contractors; providers of consulting services and outsourced services; and businesses that offer other contingent and nonemployee workers and services. We understand both sides of the issues, which provides an advantage when negotiating terms and anticipating potential disputes.

Exceptional legal advice is critical to the success of businesses that provide and facilitate the use of contingent workers, independent contractors, outsourced services, temporary staff, joint employees and other types of nonemployee labor.

In a challenging labor landscape, our team sweats the details so clients can focus on long-term results. We manage the regulatory maze, help mitigate risk and provide a robust defense against claims and audits. With the full-spectrum service of a national firm, our attorneys also guide transactions and optimize tax strategies, provide immigration and government contracts compliance advice, assist with import/export control issues, and provide the full range of employment law and employee benefit law advice.

Our goal is to help enable our clients to build a solid foundation for growth and maximize their potential, while helping them to avoid legal obstacles that may impede their success.

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Our capabilities
  • Represent staffing firms, investors, venture capitalists, private equity firms and private investors in stock deals, asset purchases, debt financing and other types of transactions.
  • Represent staffing firms, payrolling providers, independent contractor compliance/agent of record providers and other suppliers in joint ventures and teaming arrangements.
  • Draft and negotiate staffing supply agreements, including terms addressing joint employment issues and allocation of liabilities between agencies and their clients.
  • Advise on corporate and tax structures to maximize value and reduce tax burdens associated with multiple brands under one corporate umbrella.
  • Negotiate contracts with a broad range of buyers and prime contractors, including midsize companies, startups seeking specialized IT labor, enterprise clients, multinationals and prime government contractors.
  • Counsel staffing companies, payroll companies, agent of record and independent contractor compliance companies, statement of work labor/project work providers, recruitment process outsourcing companies, and permanent placement companies on labor and employment laws.
  • Counsel minority business enterprises on all facets of their staffing or other types of contingent labor supply business. 
  • Counsel clients on compliance with the Federal Acquisition Register and federal government contracts. Provide outsourced general counsel services.
  • Provide employee benefits advice, including plan development and drafting.
  • Provide advice regarding immigration law and best practices to secure the right to work and provide temporary labor services to companies in the United States.
  • Defend staffing agency clients in litigation and government audits, including defending against federal and state wage and hour claims (class, collective, PAGA, and single-plaintiff litigation), discrimination claims, and more.

Select Experience

  • Drafted and negotiated staffing agency agreements for suppliers of labor, including in various capacities such as employer, managed service provider, and contract staffing supplier.
  • Counseled clients on the acquisition of staffing firm assets, including customer contracts with and without a managed service provider or vendor management system involved in the staffing relationship.
  • Negotiated federal government supplier contracts (as a prime and as a subcontractor), in particular with the military but also with other governmental agencies and departments.
  • Created a parent-subsidiary corporate structure for domestic and foreign staffing and alternative workforce providers to maximize tax savings, enhance branding and mitigate compliance/legal exposure.

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Experience

  • Drafted and negotiated staffing agency agreements for suppliers of labor, including in various capacities such as employer, managed service provider, and contract staffing supplier.
  • Counseled clients on the acquisition of staffing firm assets, including customer contracts with and without a managed service provider or vendor management system involved in the staffing relationship.
  • Negotiated federal government supplier contracts (as a prime and as a subcontractor), in particular with the military but also with other governmental agencies and departments.
  • Created a parent-subsidiary corporate structure for domestic and foreign staffing and alternative workforce providers to maximize tax savings, enhance branding and mitigate compliance/legal exposure.
  • Regularly advise and represent staffing companies in connection with the business and regulatory risks they face when providing employees and non-employee workers to their customers, to manage and minimize the Affordable Care Act, Internal Revenue Code and employee benefit (ERISA) liabilities that such relationships create when a worker’s legal status is unclear, or capable of being disputed.
  • Enabled a public company to assemble and safely contract with a fleet of independent operators, as self-employed entrepreneurs, with access to a free-standing, tax-qualified plan program and a fully insured group health insurance plan.
  • Analyze, provide recommendations and redraft employee benefit plan eligibility terms to protect plans and sponsors from inadvertent but significant exposure to nonemployee worker claims.
  • Defended a full range of audits, from tax to compliance audits and including the Department of Labor, the Internal Revenue Service and many different types of state agencies.
  • Negotiated co-employment settlements and defended suppliers against indemnification claims for on-site claims involving end clients.
  • Advised staffing firms on union issues and union awareness training.
  • Defended nationwide collective and class action wage and hour lawsuits against staffing firms.
  • Advised staffing firms on issues unique to international staffing in the U.S.
  • Counseled staffing firms on compliance with federal export control regulations.
  • Filed amicus brief for national industry group in critical joint employment dispute before the National Labor Relations Board.
  • Defended discrimination and breach of contract claims brought by employees against staffing firms. Represented staffing firms in their defense of employee claims brought against both the staffing company and staffing company clients, including providing counsel that takes into account the underlying business needs and client relationship issues involved.
  • Advised staffing firms on various employee confidentiality issues unique to the staffing company model, including issues relating to I-9’s, criminal background checks, drug testing, and state and federal employee privacy laws.
  • Counseled staffing firms on how to reduce liability for discrimination, wage and hour, and FMLA claims within the staffing company model.
  • Assisted staffing firms in reorganizations and reductions in force.
  • Successfully defended energy industry staffing company in collective action lawsuit alleging that the company’s payment of a day rate violated the Fair Labor Standards Act, in a case that challenged the staffing company’s business model.
  • Secured summary judgment win for staffing company in indemnity action brought by client alleging the staffing company owed an indemnity related to Fair Labor Standards Act claims brought by a worker against the staffing company’s client.
  • Successfully defended staffing company in Fair Labor Standards Act collective action related to staffing company’s payment of per diem.

Publications

Key Contacts

Blog

In The Blogs

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Employment Law Spotlight
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By Rachel Palmer Hooper, M. Scott McIntyre, Aleksandra Vold
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Employment Law Spotlight
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Employment Law Spotlight
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Employment Law Spotlight
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Employment Law Spotlight
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