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Who is a Proper Defendant for Wrongful Termination of a Temporary Worker

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  • 11-07-2017, 12:13 PM
    curiousandskeptical
    Who is a Proper Defendant for Wrongful Termination of a Temporary Worker
    My question involves labor and employment law for the state of: NJ

    I have been doing my own research but that is of course limited to my own personal experience and knowledge, which is very limited. Thank you to the person who edited my title. I appreciate you helping.

    Anyway without revealing every little detail. I will try to be descriptive without revealing too much. I had "two" employers. Long-term temporary. Paid for by public funds.

    About 6 months prior to getting this position, i spent time in a crisis center. i picked myself up and was attempting to regain stability. I was doing a good job and was liked enough and a higher up staff member circulated an email around about how I was doing such a good job. He meant well but that email really made things bad for me by "union" workers. ( i am not anti-union, but I do think that sometimes "union" members feel they can harrass non-union "temps" because they can't be fired authomatically.)


    To sum it up.... shortly after that email circulated, I began being harrassed heavily, the harrassment consisted of both NON-EEO and EEO related. As a temporary employee, I was hesistant to make any moves or complaints but comments were made about my mental health status etc and being in a faciliyt just a year prior started to impact my work and I needed a few days off to get centered as I saw things spiraling downward for myself.

    However, My supervisor made a internal complaint on my behalf when she finally witnessed it herself. She finally witnessed them calling me derogatory names that violated the EEO policies so she went up the chain of command. Since I was the temporary employee and the other employees were in a union, I was told a few days later that my services were no longer needed.

    I waited 9 months for the "client" to finish its internal investigation. the internal EEO office actually found in my favor but said that Management said that I was terminated due to poor work performance. This totally confused me because the temp agency said I was laid off so I filed a complaint with the EEOC and the position statements between the two companies are conflicting.

    I do have an attorney but he is "free" and elusive. I understand that he has to be that way because he cannot guarantee any outcome. However, I am curious about the odds of them prevailing on a motion to dismiss. I would at least like to get to summary judgment stage.

    IN a few weeks there are motions pending by both defendants to Dismiss portions of the complaint. The temp agency is trying to dismiss the "breach of contract" claim because they claim we had no contract even though I signed a 3 page agreement but Their "client" is trying to dismiss the entire complaint in liue of answer because they claim "they were not my employer and are not a proper defendant". I was rehired by them both 7 months ago most likely as an effort to minimize damages. Obviously I am very confused. I can't fault them for trying to get the case dismissed but what are the odds that it gets thrown out this early in the game?
  • 11-07-2017, 01:34 PM
    Taxing Matters
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    Quote:

    Quoting curiousandskeptical
    View Post
    I can't fault them for trying to get the case dismissed but what are the odds that it gets thrown out this early in the game?

    No way to gauge that without reading the complaint your attorney filed in court. Your post is not very clear regarding the job arrangement and the relationship between the temp agency and the company that you were assigned to work for by the temp agency. If it was the usual temp agency arrangement in which the company for whom you do the work pays the temp agency and the temp agency in turn pays you then the temp agency is your actual employer, not the client for whom you are doing the work. In that situation, the client might well succeed in getting dismissed as it is not a proper party for a wrongful termination case. The temp agency might get a dismissal of the breach of contract claim, but I rather think that issue would be more appropriate for summary judgment. Unless the complaint on its face fails to allege a proper cause of action against at least one of the defendants the entire case should not be dismissed outright. If your lawyer is at all good, you should at least avoid that problem.
  • 11-07-2017, 02:04 PM
    curiousandskeptical
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    Thank you tax. My attorney may be viewed as "controversial" by some in the field. He has won some and lost some cases but that comes with the territory.

    I would say the complaint alleges enough facts to support NOT dismissing in entirety.

    I was a secretary, one of many "temps". I was not a consultant or an "independent" contractor. the temp agency is my employer of record however, the temp agency is paid by taxpayer dollars and that makes them a public vendor which may complicate matters. I hope my attorney argues that public employers cannot avoid "law" by circumventing civil service and hiring a middle man to be my "employer of record" just to avoid addressing legitmately raised issues but I do not know his mind and what I think may be irrelevant.

    The temp agency is my employer of record, but the temp agency responded that it was the client who "controlled my work and daily activities", I guess I will just have to wait and see what happens because there seems to be separate "tests" that courts use to determine "joint employment". I am not sure if I fall into those "tests".


    YOu mentioned that "If it was the usual temp agency arrangement in which the company for whom you do the work pays the temp agency and the temp agency in turn pays you then the temp agency is your actual employer. " I suppose that brings me to another question:::Are companies allowed to avoid discrimination laws by hiring temps, ? I do not believe that is what the legislature intended but I supposed we shall see.
  • 11-07-2017, 02:08 PM
    PayrolGuy
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    For an EEOC charge you go after the Worksite employer because that is where the EEOC issue happened and the EEOC.
  • 11-07-2017, 02:17 PM
    curiousandskeptical
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    I did go to the EEOC and I got right to sue. the EEOC gave me both employers position statements so we were aware of some of the defenses before the actual complaint was filed.
  • 11-07-2017, 02:20 PM
    PayrolGuy
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    The temp firm is going to have a very strong defense if you never notified them of a complaint. The worksite not so much.

    You never answered the question in the other forum. What part of the contract are you saying the Temp firm breached?
  • 11-07-2017, 02:28 PM
    curiousandskeptical
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    both companies knew of the complaint. However, it wasn't me who made the initial complaint it was My supervisor at the clients worksite who made it on my behalf, then I made a formal complaint in writing. I cooperated with the investigation and was terminated about 6 days later. 9 months later they found in my favor but all of a sudden claimed I had poor performance. I am just confused.

    I am not sure how strong the breach of implied contract is. breach of good faith in violation of public policy
  • 11-07-2017, 02:35 PM
    PayrolGuy
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    If you didn't make the complaint or inform them of the complaint how did the temp firm know about it?
  • 11-07-2017, 03:15 PM
    curiousandskeptical
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    Quote:

    Quoting PayrolGuy
    View Post
    If you didn't make the complaint or inform them of the complaint how did the temp firm know about it?

    At first I did not make the formal complaint in writing. I did eventually and the temp agency was informed later by both me and client. It doesn't matter anymore. I'm over this life anyway. Win or lose nothing really matters after all.
  • 11-07-2017, 04:11 PM
    Taxing Matters
    Re: Who is a Proper Defendant for Wrongful Termination of a Temp Worker
    Quote:

    Quoting PayrolGuy
    View Post
    For an EEOC charge you go after the Worksite employer because that is where the EEOC issue happened and the EEOC.

    Other website Px Hx.

    That’s not correct. Federal claims of illegal discrimination by an employer requires identifying who the actual employer is. The actual site where the employee works does not determine who the employer is. Rather, courts look to the common law of employment to determine who the employer is. And it is possible for both firms to be the employer. The U.S. Court of Appeals for the 3rd Circuit, which is the federal appeals court that covers NJ, stated in a case involving a temp agency arrangement that the standard applies is the following:

    In Darden, the Supreme Court set forth relevant factors to determine whether a hired party is an employee under the general common law of agency and considers the hiring party's right to control the manner and means by which the product is accomplished using the following factors: (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party's discretion over when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party. Darden, 503 U.S. at 323–24, 112 S.Ct. 1344 (citing Community for Creative Non–Violence v. Reid, 490 U.S. 730, 740, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)).

    Regarding the issue of plaintiff's employer, the court does not determine whether plaintiff is technically an employee of defendant, but instead must discern “the level of control an organization asserts over an individual's access to employment and the organization's power to deny such access.” Graves v. Lowery, 117 F.3d 723, 728 (3d Cir.1997) (citing Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338, 1342 (D.C.Cir.1973)). “[T]he precise contours of an employment relationship can only be established by a careful factual inquiry.” Id. at 729 (citation omitted).

    It is evident from the record that plaintiff entered into an “Employment Agreement” with Synerfac, that Synerfac paid plaintiff both her wages and benefits, and that Synerfac was characterized as plaintiff's employer for federal income tax purposes. Under the case law, however, it is possible for both Synerfac and defendant to be “employers” and the record is insufficiently developed to determine if defendant exercised sufficient control over plaintiff's work, as in supervising her and monitoring her performance, to qualify as an employer.

    Lorah v. Tetra Tech Inc., 541 F. Supp. 2d 629, 634 (D. Del. 2008). In that case, Tetra Tech was the client firm and Synerfac was the temp staffing firm, and it is significant to note that the court expressly stated it is possible for both the temp staffing company and the client to qualify as employers. But the case law shows circumstances in which either the temp staffing firm or the client company lacked sufficient control to be regarded as the employer, so the details of the arrangement do matter. Most of the time this cannot be resolved from looking at the complaint, so often a dismissal on the issue is not possible, as reflected by the above case. Rather, it is an issue that either might be resolved in summary judgment (if the facts, once developed, are not in dispute) or trial.
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