I Was Discriminated Against While Working as a Temp. Can I Sue the California Entity Where I Was Actually Working?

Chances are reasonably high that, if you are an employee in California, you know that you can take legal action if you’ve been the victim of discrimination, harassment or retaliation. However, what do you do if you’ve been harmed in one or more of those ways but you’re just a temporary worker? Does that “temp” status change what rights you have or whom you can sue? For customized answers to these and other questions based on your specific circumstance, be sure to consult an experienced Oakland employment attorney.

E.J. was a temporary worker caught in a circumstance like that. She worked at a shoe care goods manufacturer’s facility, but she did not work for the manufacturer. E.J.’s employer was a temporary staffing firm. The temp agency hired E.J., paid her, tracked her time and paid her any benefits to which she was entitled. After five years of working at the facility, E.J. was fired. Following that termination, she sued the shoe care goods manufacturer for FEHA violations, including sex/gender discrimination, harassment and retaliation.

The manufacturer’s defense was fairly straightforward. It argued that a worker can only recover FEHA damages from a person or entity who is the harmed worker’s employer, that it was not E.J.’s employer and, therefore, it couldn’t possibly be liable to E.J. for any harm she suffered as a result of any FEHA violations.

This is definitely one of those scenarios where it pays to have skilled legal counsel on your side. On the surface, the manufacturer’s argument might seem strong – after all, the staffing agency was the entity that had hired E.J., had paid her and recorded her hours. When E.J. got her end-of-year income tax documents, they doubtlessly came from the staffing agency, not the manufacturer.

So… the manufacturer wasn’t the employer, right? As a famous college football TV analyst might say, “Not so fast!” The appeals court explained that the correct way to analyze whether or not an employer-employee relationship existed requires going deeper than just looking at whose name is on your employment contract, pay stubs or tax forms.

FEHA discrimination law doesn’t require a ‘direct’ employer-employee relationship

California law says that, when it comes to violations of the FEHA’s protections against discrimination, harassment and retaliation, an entity must be the employer to be liable, but that employer-employee relationship doesn’t necessarily have to a direct one. If an entity exerted “direction and control” over a worker, then it could potentially be liable for FEHA violations, even if it wasn’t, he harmed worker’s direct employer.

So, in a situation where you’re a temp who has been the victim of discrimination, you need proof that the company that contracted with the temp agency directed and controlled the work you did. For example, in E.J.’s case, she had proof that her direct supervisor was not someone from the staffing firm but was an employee of the manufacturer. She also had evidence that the entity that made the decision to terminate her work at the manufacturing facility was the manufacturer, not the temp agency. That was enough potentially to hold the manufacturer liable as an indirect employer.

What you can take away from this case is that, in different areas (including different areas of the law,) terms may have different definitions. Just because an entity isn’t your employer for tax purposes, for example, that doesn’t necessarily mean that it isn’t your employer for FEHA discrimination purposes. For all of the detailed knowledge, advice and representation you need when it comes to California discrimination law, rely on the Law Offices of Stephen M. Fuerch. Attorney Fuerch is an experienced Oakland employment attorney with a long track record of helping people harmed by discrimination and harassment. To learn more about how we can help, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

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