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SmithKline Beecham Corp. was hit with a class action ERISA suit Monday by workers who say the pharmaceuticals giant avoids providing benefits by improperly classifying hundreds of its employees as “temporary” even though they’ve held their jobs for years. The suit, filed in U.S. District Court in Philadelphia, was brought by two “longtime” SKB workers who say they and other “temps” work side-by-side with permanent workers and perform the same jobs but are denied participation in the company’s health and dental plans, as well as life insurance and pension benefits. Attorneys John Shniper of Phoenixville, Pa., Philip Stephen Fuoco of Haddonfield, N.J., and Paula Markowitz of Markowitz & Richman in Philadelphia joined forces to file the suit, which seeks primarily declaratory and injunctive relief. “We hope to establish sufficient precedent to protect workers from the recent legal maneuverings of large corporations designed to deny benefits,” Fuoco said. Fuoco, a former Assistant U.S. Attorney, said he will be urging U.S. District Judge William H. Yohn Jr. to follow the 9th U.S. Circuit Court of Appeals’ decision in Vizcaino v. Microsoft Corp., in which the court held Microsoft had violated ERISA by its designation of certain employees as temporary. The two named plaintiffs in the suit against SKB are Louise D. Thomas of Phoenixville and Dennis D. Darden of Norristown, N.J. Both claim they are “common law employees” of SmithKline but that they have been denied benefits. They seek to represent a class of about 300 workers in SKB plants and offices in Pennsylvania, New Jersey, South Carolina and Tennessee who have been classified as temporary. The suit outlines the work history of the two named plaintiffs, as well as their efforts to secure benefits. Thomas began working for SKB in October 1992, when she was hired through Olsten Temporary Services. Until April 1994, the suit says, she worked full-time in the SKB warehouse in King of Prussia, Pa., as a coordinator. In April 1994, Thomas was laid off, the suit says, when she was bumped by a long-term SKB employee during a staff reduction. But in December 1994, Thomas was notified by SKB that the coordinator job was open again and that she should return to work, the suit says. But to keep her status “temporary,” the suit says, SKB told Thomas to report first to the offices of Kelly Services. Kelly Services had an office at SKB’s King of Prussia warehouse, the suit says, and the agency became her “nominal employer” in December of 1994. Thomas was paid as an employee of Kelly Services from December 1994 until March 1, 1999, when she became a “full-time active” SKB employee. But the suit alleges that during the entire period that she was classified as a Kelly temp, Thomas was actually “a common law employee of SKB doing SKB’s regular work under SKB’s supervision and control.” The suit says Thomas’ lawyers began demanding in October 1999 that she be treated as a permanent employee for purposes of the retirement and pension plans and that SKB decided in January 2000 that it would make her eligible for benefits in March. Thomas has since appealed the company’s decision to deny her request for accrual credits. Darden was originally hired in October 1993 through Kelly Services, the suit says, and he worked in SKB’s warehouse as a “temporary” material handler until March 2000, when he was re-classified as a “full-time active” SKB. Like Thomas, the suit says Darden asked for benefits late last year, but was told that he was to be treated as a “leased” employee until March 1. Darden has also appealed from the denial of benefit accrual credits in the SKB employee benefit plans. The suit seeks a court order declaring that the SKB temporary workers are entitled to accrue benefits from the SKB benefit plans “for the periods of time that they have been common law employees of SKB.” It also seeks an injunction barring SKB from continuing to classify permanent workers as temporary and an award of monetary damages to reimburse all the wrongly classified workers for the benefits they were improperly denied. The case, Thomas v. SmithKline Beecham Corp., has been assigned to U.S. District Judge William H. Yohn Jr.

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