Do You Know When Staffing Agencies And Companies That Use Staffing Agencies Can Both Be Sued As Joint Employers By Employees?

Companies are not insulated from defending employment discrimination claims just because the worker is technically employed by a staffing agency.

In Hexmer v. General Electric Company, the plaintiff had been working as a project consultant for a staffing agency. She was assigned to a GE facility and was responsible for updating GE power plant manuals, providing training, and designing a webpage for GE. She was hired and paid by the staffing company, not GE, and her employment contract with the staffing company specified that she was an employee of the staffing company, not GE.

The plaintiff made a comment about weight gain, and a GE employee berated her for the comment. The plaintiff tried to complain to GE supervisors about the incident, but they were not available, so she complained about it to her staffing company. Hexmer was terminated a few days later.

The staffing company told Hexmer that GE decided to terminate her from the project after learning about the weight gain comment. Since no other work was lined up for her, the staffing company terminated Hexmer. Hexmer sued both GE and the staffing company as joint employers alleging retaliation against her for having complained about a hostile work environment and for discrimination. GE’s attempt at getting out the lawsuit on the theory that it was not a joint employer with the staffing company failed.

To determine whether a staffing agency employee is a joint employee of the company benefitting from the work, “the predominant focus is on the control exercised by the putative joint employer over the plaintiff’s work.” Four factors are typically considered in making this determination:

  1. Whether the proposed joint employer selected or hired the worker;
  2. Whether the proposed joint employer pays the worker;
  3. Whether the proposed joint employer had the ability to dismiss the worker; and
  4. Whether the proposed joint employer had the power to control the worker’s conduct.

Even though GE did not meet the first 2 factors, it leaned towards meeting the second 2 factors, and that was sufficient to consider GE a joint employer.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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