This summer, the Fourth Circuit confirmed what many employers already believed to be true – that host users of temporary employees are more likely than not liable to temp workers for potential Title VII violations. In its decision, the appeals court propounded the appropriate test for determining whether an organization is a joint employer under Title VII.
The court set forth nine points that represent a hybrid of both the “control test” and the “economic realities test” that have traditionally been applied to determine joint employer status. Of those nine points, the three most important are: (1) whether the organization has the authority to hire and fire the individual; (2) whether the organization exercises daily supervision, including discipline, of the individual; and (3) whether the organization furnishes the equipment and workspace that the individual uses to perform his or her job.
In Butler v. Drive Automotive Industries of America, Inc., the plaintiff was placed at the defendant’s facility by a temporary employment agency. While working at Drive, Butler alleged that a Drive supervisor sexually harassed her and then retaliated against her when she reported his behavior. Applying the hybrid test and considering all factors together, the court determined that Drive and the temporary employment agency jointly employed Butler.
This case removes some of the guesswork and makes it abundantly clear to organizations that most temporary employee placements on their premises will subject them to potential liability and to the EEOC’s jurisdiction. Regardless of how an organization views its relationship with temporary employees, it should engage in best employment practices with regard to those individuals and treat those employees with the same level of decorum and respect as its regular employees.