Joint Employment Means Joint Liability in Discrimination Law

The usage of contingent labor continues to grow for many reasons.  Not only does contract labor enable a company to add to its workforce during peak periods (and pare back easily during troughs), but sourcing contractors through staffing suppliers also transfers the burden of benefits, administration, and other legal compliance issues from the employer to the staffing provider. That liberating feeling for employers must be tempered however, because temp laborers aren’t – as employers sometimes mistakenly believe – 100% employees of the staffing agency. The truth is, in fact, a bit more complicated. Because of this, it is important consider joint employment and your company’s potential liability.

The Equal Employment Opportunity Commission (EEOC) offers a clear definition of the contingent worker. The term “contingent worker” covers a wide array of contractor arrangements and workplace conditions including temp workers on a company’s payroll, ICs, agency temps, and leased employees. All contingents, as defined by the EEOC, must be afforded the same consideration and protection from discrimination as the employer providers to full time employees. In short, there is no difference in the eyes of the law between discrimination against a full time worker and a temp laborer sourced through a staffing supplier.

For all intents and purposes, the law looks on these arrangements as “joint employment,” and both the employer and the staffing supplier share any liabilities stemming from discrimination claims. Even if your agreements with contractors sourced through agencies clearly states that the contractor is not an employee, they may still be considered as such by the law. Protect your organization against possible discrimination challenges by observing the following guidelines with respect to your relationship with your staffing agencies should a temp worker file a claim:

• Be clear on whether the temp worker is a legitimate independent contractor
• If you hire temps from an agency but still control the working conditions, length of assignment and provide supervision to the worker, you are likely a joint employer
• Ensure your organization is fully aware of and compliant with anti-discrimination laws. Include your temporary workers in the administration of anti-discrimination policies
• Avoid asking your suppliers to provide resources in any way that could be construed as discriminatory e.g. requesting only male workers or workers of a particular age

Don’t assume that simply because you didn’t source and onboard the contractor, or because the contractor’s paycheck comes from the staffing supplier that hired him/her, that you hold no liability. The guidance used by the EEOC to investigate the liabilities of joint-employment are held in high esteem by the courts so don’t imagine you can skirt discrimination laws simply by using agency employees.