Some employers prefer using temporary workers due to the added flexibility they provide in terms of filling roles not suited for permanent employees. However, some employers persist in believing that obtaining workers from a temporary staffing service shields them from civil rights and other claims relating to those workers’ experience at the host user of the labor services. Last month, the Third Circuit Court of Appeals joined an increasing number of federal courts that have found users of temp services to be jointly liable of employment discrimination claims.

In Faush v. Tuesday Morning, Inc., the defendant obtained temporary labor services from a staffing agency. The plaintiff alleged that while working for Tuesday Morning, company employees supervising his work discriminated against him based on his race. The defendant sought to dismiss the claims on the basis that the defendant was not its employee as defined under Title VII and Section 1981.

The Third Circuit rejected this claim, finding that the staffing agency and host company are joint employers, both subject to Title VII. The court used a common law employer test established by the U.S. Supreme Court to conclude that the plaintiff’s was trained, supervised and monitored by Tuesday Morning, indicating the existence of an employment relationship.

The Third Circuit did affirm dismissal of the Section 1981 claim, noting the lack of any contract between the plaintiff and defendant. This decision echoes one applying to employers in the Carolinas, reached by the Fourth Circuit earlier this year. For years, the EEOC has taken the position in administrative charges that both the temp agency and host are jointly considered employers under federal civil rights statutes.

Employers using temporary worker services should treat those workers the same as their permanent employees in terms of equal employment opportunity, harassment and accommodation policies. Their technical status as employees of the staffing service will not shield the user of those services from most claims of employment discrimination.