Temp Workers and their Title VII Rights | DCR Workforce Blog

Temp Workers and their Title VII Rights

In our previous post, we discussed the changing definitions of the Title VII rights of workers. But these days, hiring temporary workers is the norm rather than exception for most American companies. By definition, the work they do happens at a worksite which is not owned or managed by their actual employer, the staffing agency. This makes the job of establishing any liability for the violation of their Title VII rights a complicated matter.

A temporary employee could be deemed by the government to be an employee of a staffing agency, or an employee of both the staffing agency and its client. So, it is essential for the on-site employer (the staffing agency’s client) to be aware of the particular actions which could lead to a violation of a temporary worker’s Title VII protections. They should also know the course of action they need to follow when a temporary worker charges them with Title VII violation.

Title VII of the Civil Rights Act was originally enacted to prohibit discrimination on the basis of race, color, sex or national origin; with subsequent amendments extending the protection to religion and pregnancy. Employers may be held liable for the following:

  1. Disparate Treatment: where the worker is treated differentlybased on his or her membership in a protected class. This is an unlawful practice, and can be proved through direct or circumstantial evidence or even by establishing a clear pattern of discrimination on the part of the employer.
  2. Adverse Impact: Employment practices that appear neutral but create a disparate impact on a particular protected class. Demanding a college degree for a job which does not require any of the skills imparted by education helps an employer to eliminate candidates from a protected class.
  3. Failure to Make Reasonable Accommodation: as it is an employer’s duty to accommodate aworker’s religious observance and practice, when it does not present undue hardship to the business operation.
  4. Retaliation: when workers file discrimination charges against an employer or oppose any of their unlawful practices, they are protected from adverse employment outcomes resulting from retaliation to their action.

The question that arises in all this, in the context of a temporary worker is: who is the employer? If the temporary worker reports the on-site employer’s unlawful practices, and the staffing agency is then asked to terminate the worker, will the worker be protected by Title VII rights?

An employment relationship under Title VII is determined by the following tests:

  • Economic realities test of the relationship looks at the occupation, skill required, who furnished the equipment, length of time worked, payment method, retirement benefits, leave, termination, and the degree of control exercised over the worker.
  • Union membership test looks at the eligibility of the temporary worker to vote in the on-site union elections, the length of relationship between the worker and the on-site employer and the potential for permanent employment offered to the temporary worker.

Apart from these tests, courts also determine whether an employer is subject to Title VII liability by looking at the employer’s ability to control means and manner of individual performance. Actions such as defining job duties, setting work schedules, signing the worker’s time slip, and reporting to an on-site supervisor all help to pinpoint the control exerted over the worker and the resulting Title VII liability.

Recent legal cases are taking the position that a temporary worker would be protected by applying a joint liability to both the staffing agency which deploys them and the on-site employer who gets work from them. Normally, courts determine the existence of joint employment liability by applying some tests to establish its existence. This usually includes the power of the company to hire, fire or modify he employment conditions of the employees and the ability of the worker to choose to work (or not) for the company in question. In some cases, the two companies are integrated to a large extent and share common ownership, management or centralized labor relations.

Protecting Worker Rights:

Title VII provides equal protection to temporary workers and workers who have permanent jobs. Any discrimination or retaliation faced at the workplace will need to be reported to the appropriate authority – which in this case would be the staffing agency who is the worker’s employer of record. Contract workers may also consider informing a responsible person in the on-site management team. Regardless of who is notified of the potential abuse of the worker’s rights, complaints from a temporary worker should be treated with equal importance, as it is in the interests of both parties to curb such negative behaviors as early as possible.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.