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CASE EVALUATION
Who is Responsible When Violating Employment Laws?
Who is responsible when violating employment laws, the temp agency or the company they send you to?
It’s a good question. Companies who outsource to Temp Agencies do so, in part, to evade labor laws. When a dispute gets to litigation, the temp agencies try to clean their hands and say they are not the employers.
When they share responsibilities, which most do, they are likely equally responsible.
Illegal Termination Over Medical Leave: Danielle Lee’s Case Against Malibu Beach Inn
We recently tried a case in California Superior Court after our client, Danielle Lee, was fired from the Malibu Beach Inn because she was hospitalized for a couple days due to sickle cell anemia. A couple days after she went to the hospital for a week-long stay, Malibu Beach Inn asked the temp agency to cut ties with Danielle, and find a new candidate. The temp agency, called Rockstar Staffing, said sure, and then lied to Ms. Lee about why she was terminated.
Malibu Beach Inn is pretty fancy. Their treatment of Ms. Lee was abhorrent.
It is illegal to terminate someone just because they go to the hospital. Employers have to provide reasonable accommodations. Missing a week of work due to an illness, a car accident, and even a hospitalization is permitted. You do not lose your job for that in California or Massachusetts.
Understanding Dual-Employer Liability in Staffing Agency Disputes
Dual-employer liability under FEHA is well recognized, especially in the context of staffing agencies. To safeguard an employee’s right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of “dual employers, holding both an employment agency and its clients as employers. Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183. “Where an employer an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers – his original ‘general’ employers and a second ‘special’ employer.” Id. Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 (citing Miller v. Long Beach Oil Dev. Co. (1959) 167 Cal.App.2d 546, 549.) Also, “when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee’s activities” a two-employer situation is created.” (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247-48.)
Generally, an injured worker can look to both the general and specific employer for compensation. Kowalski v. Shell Oil Co., supra, 23 Cal.3d at 175 (applying the dual employment doctrine to workers’ compensation claims). The concept of dual employment applies to FEHA as well to allow an employee injured by violations of FEHA to look to both employers for redress. Mathieu, supra, 115 Cal.App.4th at 1184.
In Mathieu, a woman employed by a staffing agency was assigned to work at the client’s location, where she was sexually harassed by the client’s employee. The Court determined that both the agency and the client could be considered her employers under the FEHA because she was sent by the agency to do work for the client and both had the right to exercise control over her. Mathieu at 1183. As such, there is a relatively low threshold to meet for finding that an employment relationship exists between a client business and a staffing agency worker for discrimination and harassment claims.
If you make a claim, or file a lawsuit, the temp agencies and their partners will both claim the other is the employer, and they are immune from liability.
We beat the temp agency and Malibu Beach Inn’s legal efforts by providing the court with evidence of dual employment.
After trial, the Court of Appeal upheld the verdict against Rockstar Staffing. We dug into the relationship and showed how they shared responsibility towards our client. Each case is different. The more you press, the more evidence you will likely find to help your clients.