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.