The temporary service industry is the largest private employment sector in our country. We all know the advantages of using temporary services. Customers need to recognize, however, that when it comes to employment discrimination, workplace harassment, and safety issues, a temporary agency employee is often also the customer’s employee. The Fourth Circuit Court of Appeals found such a relationship in the case of Butler v. Drive Auto Industry of America, Inc. (July 15, 2015). According to the Fourth Circuit, the “control” over the employee’s job responsibilities and assignments and supervision of that employee determine if the customer is in fact a joint employer. The Court used a combination of a “control” test with the “economic realities” test, both of which have been endorsed by other appellate courts. The control factor asks which employer has the practical dayto-day control of the employee. In this case, although the employee wore a uniform from the temporary service, the employee’s day-to-day responsibilities and assignments were controlled by Drive, the customer. Furthermore, the temporary employees worked “side by side” with Drive’s regular employees, used the same equipment as the regular employees, and performed responsibilities that were integral to the daily activities of the business. In also considering the economic realities of the temporary employee relationship, the Court noted that the temporary employee relies on the customer for his pay, not the temporary employer. That’s the economic reality of the situation. Further evidence the Court considered was that the temporary employee was removed from the assignment at Drive’s request.
Some companies believe that if they do not extend certain policies and procedures to temporary employees, they will enhance the argument that the temporary employees are not theirs. This is problematic for compliance with OSHA, where the injury that occurs to a temporary employee needs to be logged and if necessary, reported by the customer. Policies and procedures regarding harassment and safety need to be reviewed with temporary employees on site, as a discrimination charge or lawsuit will likely be filed against both employers and the question for the customer will be what steps the customer took to maintain a work environment free of such harassment or discrimination.
There are work environments where the temporary employee truly is supervised by a supervisor from the staffing agency. That is, a staffing agency performs a specific function at a customer’s location, where they in essence are operating as a contractor. In those situations, the customer is less likely to be found to be a joint employer.