Law Offices of Dan A. Atkerson

Can Temp Agency Workers Sue for Workplace Discrimination?

By Dan Atkerson on December 07, 2015

Group of Multiethnic Diverse Business PeopleYet again, the balance between employee rights and employer power is being tested after an appeals court recently decided to revoke a lower court’s judgment to dismiss a case involving workplace discrimination of a temp agency worker.

Mr. Faush, an employee at a temp agency, claims to have been the victim of racial discrimination, including derogatory slurs, racially biased accusations, and wrongful termination. Mr. Faush filed a lawsuit against Tuesday Morning, but the case was thrown out when a judge concluded that since he had been hired from a temp agency, he did not qualify as an employee.

Do Temp Workers Qualify as Employees?

After reviewing the case, the Third Circuit court disagreed with the lower courts original judgement, finding that Mr. Faush more than met the requirements. It argues that Tuesday Morning was certainly Mr. Faush’s employer due to the following factors.
  • Employee Wages – Tuesday Morning had been paying Mr. Faush’s wages, which is a characteristic of an employer/employee relationship.
  • Supervision – The court also found that Tuesday Morning had been in control of Mr. Faush’s day-to-day activities. Supervision and oversight suggests a worker is an employee rather than an independent contractor.
  • Hiring and Firing – Tuesday Morning’s power to hire and fire Mr. Faush in the first place constitutes employment.
Temp workers who are hired, paid by the company they work for directly, supervised and controlled, and fired are not independent contractors or anything else. They are employees and as such are protected from discrimination at work.

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