Employee of Staffing Agency Can File a Discrimination Claim Against the Company to Whom He was Placed

Labor Ready, a staffing firm that provides temporary employees, assigned Matthew Faush to home goods retailer, Tuesday Morning, Inc. Tuesday Morning asked Faush to unload merchandise, set up display shelves, and stock merchandise on the shelves. Faush alleged that (1) Tuesday Morning’s manager accused him of stealing, (2) Faush was told to work in the back of the store with the garbage, and (3) a white employee blocked his path and referred to him using a racial slur when Faush went to complain. Faush sued Tuesday Morning alleging race discrimination. In responding to the lawsuit, Tuesday Morning argued that it was not liable because Faush was not its employee.

The Third Circuit ruled that Tuesday Morning could be sued because it was a joint employer of Faush. Tuesday Morning personnel gave Faush assignments, directly supervised him, provided site specific training, furnished any equipment and materials necessary, and verified the number of hours he worked on a daily basis. Tuesday Morning also indirectly paid Faush’s wages, plus a fee to Labor Ready for its administrative services. Tuesday Morning had ultimate control whether Faush was permitted to work at its store. Faush was not hired for any specialized skill set. His job duties were no different than those assigned to Tuesday Morning employees. Tuesday Morning characterized Faush as a temporary employee rather than an independent contractor. Tuesday Morning also agreed that it would provide a workplace free from discrimination and unfair labor practices. In conclusion, the court said “A rational jury could find that Faush was Tuesday Morning’s employee. Although he was paid and dispatched by Labor Ready, he worked under the direct supervision and control of Tuesday Morning managers who instructed the Labor Ready employees on the details of the work they were doing.”

Companies cannot automatically escape liability for discrimination claims from employees of staffing agencies assigned to their work locations. To avoid liability, companies can either restructure their arrangements with the staffing agency, or more importantly, educate and train managers and employees that they are expected to comply with all anti-discrimination statutes regardless of the status of the person raising the complaint.

Michael J. Crocenzi, Esquire is a shareholder with the Harrisburg law firm of Goldberg Katzman, P.C. He is the chairperson of HRP’s Legislative Committee.

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