I obtained the language from an offer letter provided to a colleague who was transitioned to Infinite in July. I subsequently had this document reviewed by my employment attorney / father-in-law. His reaction was immediate and unequivocal. Despite the paper transfer, the same employees continue to perform the exact same work they performed at Fiserv, for the same clients, using the same systems and devices, and reporting into the same leadership. Day-to-day direction, supervision, and control remain firmly with Fiserv. A payroll change does not alter economic reality.
Based on these facts, he concluded that this structure exposes Fiserv to extraordinary legal and regulatory risk. Employees who were nominally transferred but remain substantively controlled by Fiserv have clear and actionable claims. This is not a gray area, nor a technical compliance issues, it is a textbook example of form being used to disguise substance.
He further stated that if this model is applied broadly, Fiserv’s potential exposure is staggering. The company could face hundreds of millions of dollars in liability to the IRS for unpaid or improperly allocated payroll taxes, penalties, and interest, in addition to serious exposure under Department of Labor enforcement. Using a third party as a payroll conduit does not insulate the controlling employer from federal tax or labor law obligations.
In his professional judgment, this structure is unsustainable. He believes it is only a matter of time before it draws regulatory scrutiny and becomes public, resulting in significant enforcement actions and reputational damage. No amount of contractual language can override the reality of who controls the work. I understand the initial contract was executed by Frank and Guy, but WTH, 🤦 Mike? Last nail in the coffin?