A recent Third Circuit decision overhauled previous notions of non-liability for temporary employees. Typically, a temporary employee is thought to be the liability problem of the staffing agency that places the employee. The Third Circuit’s decision in Faush v Tuesday Morning, Inc. suggests otherwise. In this case, Plaintiff Matthew Faush and two other employees were ordered to clean up trash in the back of the store. When Faust complained about the assignment he was told by the store manager that minorities were not allowed to work in the front due to risk of theft. Faust was then fired shortly after. The district court decided that Faust was not an employer and could not be liable under the discrimination statutes.
The Third Circuit Court examined the factors and ruled that the company was liable for its temporary workers because it: indirectly paid Faush’s wages, had the power to demand replacement workers, gave assignments, and directly supervised the temporary workers. Individuals employed by third party staffing firms may have a relationship not only with the staffing agency, but with employers as well, and that relationship should be closely examined when dealing with incidents involving liability. Individuals employed by staffing agencies should carefully review their contracts to ensure that such agreements provide adequate protection against potential adverse actions taken by the employer.