Staffing Company Has to Ask

By Bill Wright

The Fifth Circuit Court of Appeals expanded on the EEOC’s guidance on a staffing company’s liability for its client’s discriminatory decisions. According to the court, a staffing company may be liable when a client asks the staffing company to remove a particular assigned employee, if the staffing company knew or should have known that the client’s decision was discriminatory. Nicholson v. Securitas Security Servs. USA, Inc., No. 15-10582 (5th Cir. July 18, 2016). In this case, the client asked the staffing company to remove an 83-year-old receptionist, saying that the receptionist could not perform new technology-related tasks. There was no evidence that the staffing company knew the client’s decision was based on discriminatory animus, but there was evidence the staffing company should have known: the staffing company did not verify the client’s story. The staffing company simply took the client’s word for it that the receptionist couldn’t do the job, even though the staffing company “generally” asked for the employee’s side of the story and “normally” addressed job performance with counseling rather than immediate termination.

We’re now used to the idea that a staffing company and its client will be joint employers for some purposes. Expect to discuss the reasons for joint employment decisions.