Common-Law Employee, But No Contract

By Bill Wright

In Faush v. Tuesday Morning, Inc., No. 14-1452 (3d Cir. November 18, 2015), the court addressed race discrimination claims brought by a former temporary worker against the company he was assigned to assist. The plaintiff signed up with a staffing firm and was assigned to help set up a new retail store. While there, he alleges that the store manager accused him of theft, the manager’s mother sent him to work with the trash, and a store employee used a racial epithet. The plaintiff brought claims under both Title VII and Section 1981. The court determined the store manager’s authority to reject any unsatisfactory worker and his direct supervision of the temporary workers created at least a fact dispute about whether the store was the plaintiff’s employer, jointly with the staffing firm. This was enough for the Title VII claim to proceed. On the other hand, the store had no contract with the plaintiff, and so the Section 1981 claim was properly dismissed. Common-law, joint employer status apparently is not contract-based. However, the court called for changes to Title VII so it would clearly cover all clients of staffing firms. The fear is that clients and staffing firms might create careful contracts that assign all Title VII liability to the staffing firm. Watch for further calls for temporary staffing reform.