Suzanne Fischer Lorenz is an Associate at the law firm of Cramer, Multhauf & Hammes, LLP in Waukesha. Because one of Suzanne’s specialty areas is Employment Law, we asked her to share her knowledge regarding the issue of co-employment. This article is a summary of her responses. Suzanne did state that each employment situation differs from the next. Liability for employment discrimination depends on particular facts and circumstances. Therefore, the responses to the questions below are based on generalities. The key to a successful relationship between a staffing firm and client employer is good communication.
Q: Can you define co-employment?
A: There is no legal definition of co-employment or joint employer; however, if two or more entities share the direction and control over either an employee or the person responsible for supervising the employee and have the requisite number of employees, the entities will be considered joint employers and will share responsibility and potential liability for violations of the law.
Q: What steps should employers take to minimize their legal exposure to co-employment issues?
A: The best thing an client employer can do to minimize its legal exposure to co-employment issues is to have frequent communication with the staffing firm and comply with both federal and state laws with respect to employment related issues. In addition, all employers, regardless of whether they use a staffing agency, should have a detailed Employee Handbook or Policy Manual.
Q: Is a staffing firm worker who is assigned to a client an employee of the firm, the client, or both?
A: In general, a staffing firm worker is an employee of both the staffing firm and the client, as long as both the client and staffing firm have the statutory number of employees to be covered by Title VII and the Age Discrimination in Employment Act (ADEA)--15 or more employees, or the
Americans with Disabilities Act (ADA)--20 or more employees. Under the Wisconsin Fair Employment Act (WFEA), the only requirement is that the employer employ one individual.
Q: Can a staffing firm be liable for denying or not offering work to a qualified employee an assignment because the CLIENT company refuses to accept the worker for a discriminating reason? (For example, a client company that needs help in an industrial job and requests that the staffing firm only sends men.)
A: This question can only be answered on a case-by-case basis depending on the particular facts of each case. However, in general, the client employer will be liable for discriminatory practices in denying employment to a qualified applicant. There may be circumstances where the staffing firm is liable as well. In order to avoid liability is this situation, both the staffing firm and employer should set requirements that are not related to one of the protected classes, i.e. age, sex, religion, etc. For example, in order to avoid liability in this situaion, rather than requesting only men, set lifting requirements if such requirements are an integral part of the job. However, if a female employee is able to meet the lifting requirements, she should be treated like all other job candidates without consideration to her gender.
Q: If a client discriminates against a worker assigned by a firm, who is liable?
A: Both the client employer and staffing firm could be liable if the client employer discriminates against an employee depending on the facts and circumstances. If both are found liable, the full amount of any damages can be paid from either one or both employers combined, as determined by the EEOC/ERD investigator. Punitive and liquidated damages will be assessed to each according to the respective degree of misconduct.
Q: How careful do employers need to be about including staffing firm employees in activities/events that the employer’s own employees are involved in? For example, is it really so dangerous to include staffing firm employees in staff meetings or company outings?
A: In a majority of cases, when an employee brings a claim for employment discrimination, the claim is brought against both the staffing firm and the client employer. A client employer does not need to be concerned about including staffing firm employees in activities and events, including meetings, sponsored by the Company.
Suzanne Fischer Lorenz is an Associate at the law firm of Cramer, Multhauf & Hammes, LLP located at 1601 E. Racine Avenue, Suite 200, Waukesha, Wisconsin 53186. She was admitted to the bar in 1993, Wisconsin and U.S. District Court, Eastern and Western Districts of Wisconsin. Education: University of Wisconsin-LaCrosse (B.S., 1989); Marquette University (J.D. 1993). Member: Waukesha County Bar Association; State Bar of Wisconsin. Practice areas: Employment, General Practice and Family Law. If you have any questions, please feel free to contact Suzanne directly at 262-542-4278 or via email at Suzanne@cmhlaw.com