Employers not Immune from Suit by Temp Agency Workers

Details

Created on Wednesday, 01 October 2008 12:18

Click here to download a pdf copy of this article

            Many organizations hire workers through temporary employment agencies in the belief they are protected from suit because they are not the “primary” employer. In most cases, such organizations remain liable under the concept of “joint employment.”

            Joint employment is a term used to describe an employment relationship between an employee and more than one employer. Although an employee may have a primary employer who hires, fires and pays him, the employee can also have a secondary or joint employer who directs him on a day to day basis. A joint employer can be held liable under many laws on the same basis as a primary employer.

            For instance the Second Circuit Court of Appeals, which covers Connecticut, recently found that a certified nursing assistant that worked for and was assigned by three separate temporary agencies to work at a hospital was an employee of each of the agencies and the hospital for purposes of the Fair Labor Standards Act (“FLSA”). Therefore, even though she worked for less than 40 hours for each of the agencies, because she worked for more than 40 hours for the hospital, the hospital was liable for paying her overtime under the FLSA. Joint employment liability also applies to discrimination, leave, immigration, and other workplace laws.

            In analyzing whether an organization is a joint employer, courts look at the totality of circumstances to determine if the secondary employer exercises either formal or functional control over the employee. A variety of factors are typically considered and include whether the organization has (1) authority to hire, fire, discipline or recommend discipline; (2) control over pay and benefits; (3) supervisory responsibility on a daily basis; (4) the right to set work hours; and (5) ownership of the premises and equipment used by the employee. Where some or all of these factors are satisfied a joint employer relationship is usually found.

            Based on the joint employer concept, companies should be aware that even if they contract with agencies to supply workers they may be equally liable for employment law violations claimed by contract employees. As a result, employers should treat such workers in the same non-discriminatory manner it does regular employees and ensure that the agency employer complies with all of its legal and contractual obligations.

For more information contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it. or (860) 216-1965.

www.schaffer-law.com