WHO’S TO BLAME: THE ISSUE OF JOINT LIABILITY WITH TEMP WORKERS

Under Kentucky and Federal law, temporary, or “leased,” workers are entitled to the same rights and privileges as any permanent employee. Unfortunately, many employers take advantage of and discriminate against temporary workers because they believe only the temporary agency supplying the workers is liable for such actions. While it is true that temporary agencies are considered employers for the purposes of liability, there are certain circumstances where both the temporary agency and the client employer can be held liable for any injuries to the employee. When this is the case, employees can recover damages from either, or both of, their employers.

The Sixth Circuit Court of Appeals has commented on joint-liability for employers on a number of occasions, and recently confirmed that joint-liability could be attributable to both a temporary agency and “client” company in EEOC v. Skanska USA Bldg., Inc., 550 Fed. Appx. 253 (6th. Cir. 2013). In Skanska USA, the Equal Employment Opportunity Commission filed a complaint on behalf of three African American leased workers who were subjected to discrimination based on race, a hostile work environment, and unlawful termination. Initially, the District Court decided in favor of the client company, holding that it was not the legal employer of the three men. On appeal, this decision was reversed, and it was concluded that both the company and the temporary agency were joint employers of the three men. The Sixth Circuit held that entities are joint employers if they “share or co-determine those matters governing essential terms and conditions of employment.” In reaching this determination, the Court considered such factors as “an entity’s ability to hire, fire or discipline employees, affect their compensation and benefits, and direct and supervise their performance.”

This case supplies the framework for which temporary employees in Kentucky can go about recovering damages resulting from discrimination, FMLA violations, and other sources of employee abuse from both of their employers. If the client company utilizes extensive control over their temporary employees, they are typically found to be a joint employer with the leasing company.

If you have been subjected to abuse in the workplace as a temporary employee, you should seek counsel immediately to determine the legal options available to you. It is quite possible that you have been subjected to unlawful activity, and may have a potential claim for the damages you have suffered.

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