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Temp worker can sue staffing buyer for discrimination, court rules

November 25, 2015

A worker provided by a staffing firm can file discrimination claims against staffing buyer Tuesday Morning Inc., the US Court of Appeals for the Third Circuit ruled Nov. 18.

Matthew Faush, an African-American employee of staffing firm Labor Ready, was assigned to work at one of Tuesday Morning’s stores. Faush alleged he was subjected to racial slurs and racially motivated accusations at the closeout home-goods store and was eventually terminated. He filed suit against Tuesday Morning, claiming violations of Title VII and the Pennsylvania Human Relations Act, among other statutes. The district court granted summary judgment to Tuesday Morning on the ground that, because Faush was not Tuesday Morning’s employee, Tuesday Morning could not be liable for employment discrimination.

However, the appeals court ruled Tuesday Morning was considered Faush’s employer.

“…a rational jury could find that Faush was Tuesday Morning’s employee,” the decision stated. “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.”

Additionally, Labor Ready disclaimed responsibility for supervising the temporary employees’ work. When a Labor Ready supervisor visited the Tuesday Morning store, she acted only as a conduit for instructions from the Tuesday Morning manager.

“We are mindful that many aspects of the Labor Ready-Tuesday Morning employment arrangement that we have identified in combination as sufficient to survive summary judgment will pertain to a large number of temporary employment arrangements, with attendant potential liability under Title VII for the clients of those temporary employment agencies,” the decision stated. “We do not anticipate, however, that our holding today, which is limited to the Title VII context, will vastly expand such liability, as entities with over 15 employees are already subject to Title VII. In any event, given the broad remedial policies behind Title VII, Congress’s decision to use the term ‘employee’ in its common law sense, and the Darden factors compel us to conclude that, on the facts here, a reasonable jury could find that Tuesday Morning was Faush’s joint employer and that summary judgment was therefore improper.”

Here is the opinion.