The Temporary Placement
A staffing employer whose workers take short, uneven assignments can treat a new hire as variable hour. If typical placements run three to twelve months and renew back to back, the employer cannot.
The three things to know.
When Variable-Hour Fits
Assignments are short, hours vary, gaps are common and the worker may decline a placement. The employer cannot tell at hire whether the average will reach 30 hours.
When It Does Not
If typical placements run three to twelve months and are renewed continuously, the employer should expect full-time availability and measure monthly from the start date.
The Takeaway
The facts at hire decide the method. Keep a record of the assignment pattern behind the choice.
Sources: 26 CFR § 54.4980H-1; 26 CFR § 54.4980H-3. General information, not legal advice.
A worked example.
A Warehouse Temp at a Staffing Firm
A staffing firm places a worker in a warehouse assignment that is expected to last six weeks, with a good chance of extension. The worker can decline later assignments.
What the Rule Produces
The firm treats the hire as variable-hour because hours are uncertain at hire. If placements later become steady and long, the facts change and the next measurement result reflects them.
Four steps to apply it.
1. Review the pattern
Look at typical assignment length and renewal.
2. Classify at hire
Decide expected hours from that pattern.
3. Measure over a window
Use an initial measurement period if hours are uncertain.
4. Track gaps
Record weeks between assignments.
Where it goes wrong. Treating long, back-to-back placements as variable-hour.
The questions that come up next.
Does a staffing firm count as the employer?
Under the common-law test the firm that controls the work is the employer. Arrangements involving multiple parties need careful review.
What if assignments shift after hire?
Document how the pattern changed and review the classification at the next measurement period.
Is this advice for a PEO?
No. PEO and co-employment arrangements raise additional questions, and counsel should review them.
Who is the employer?
Common-law control decides. Review client contracts with counsel.
What about a worker who ends an assignment?
The record stays, and the rehire rules decide how a return is treated.
Plan-specific questions belong with ERISA counsel, and we will bring them in.
Related pages on the look-back method.
Equivalencies Cannot Understate
For non-hourly employees the days-worked and weeks-worked shortcuts are not allowed if they substantially understate hours.
The 13-Week Rehire Rule
An employee returning after at least 13 consecutive weeks without an hour of service can be treated as a new hire.
The Full Look-Back Guide
Every rule, example and source behind this page, in one place.
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