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MY BOSS SAYS . . . she won't do anything about the way I'm treated in the workplace because I work as a temp for a staffing agency.

These days things can be complicated in the workplace, even in terms of who exactly your employer is. Many employees work for staffing or "temp" agencies and are assigned to work in companies for supervisors who have a different employer.

Let me give you a hypothetical employment situation involving "Sally," a fictional staffing agency employee. Let's say Sally works for ABC Staffing Agency, and she is sent to perform data entry services on the computer system of XYZ Corporation. Sally happens to have high blood pressure, which is considered a disability under the Americans with Disabilities Act.

Sally's supervisor, Tony, is an employee of XYZ Corporation, and he tells ABC Staffing Agency that Sally's requests to adjust her schedule are becoming a problem. You see, Sally needs to have her blood pressure checked regularly at her physician's office, and she occasionally requests that she be allowed to adjust her schedule by 30 minutes so that she can see her doctor either first thing in the morning or late in the afternoon.

Tony begins to scrutinize Sally's every move and reprimands her for supposed infractions that other employees get away with. Sally emails the owner of ABC Staffing and conveys her concerns about Tony's refusal to allow her to adjust her schedule for doctor's visits and his repeated reprimands, which Sally feels are meritless. Sally begs ABC's Staffing's owner to address the matter with XYZ Corporation.

Having learned that Sally has spoken to ABC Staffing's owner, Tony now demands that ABC Staffing remove Sally from the data entry job. Tony argues that his company has a contract with ABC Staffing, and the contract says he can get rid of a staffing agency employee who isn't working out. ABC Staffing not only removes Sally from the assignment but also fires her, telling her it has no other available assignments on which to send her. Is XYZ Corporation Sally's employer, even though it is only the client of ABC Staffing and doesn't cut Sally a paycheck? Or is only ABC Staffing Sally's employer since it pays Sally and sent her to XYZ Corporation for the assignment?

The United States Fifth Circuit Court of Appeal is the federal appeals court for Louisiana, Mississippi, and Texas, and recently the Court addressed this issue in a case called Burton v. Freescale Semiconductor, Inc. According to the Fifth Circuit, both the staffing agency and its corporate client are potentially liable in a lawsuit for employment discrimination.

If the corporate client controls the employee's work conduct, such as supervising her and reprimanding her, then this is enough to establish that the corporate client, and not just the staffing agency, is the employer. In such a case, the corporate client and the staffing agency are, in fact, considered "joint employers." Furthermore, the staffing agency is liable if it participates in the corporate client's illegal discrimination against the staffing agency's employee. The staffing agency is also liable if it knew or should have known of the corporate client's discrimination and failed to take prompt corrective measures within its control. And, the fact that the staffing agency and the corporate client have a contract is no excuse for engaging in or permitting discriminatory conduct.

So in Sally's case, ABC Staffing Agency and XYZ Corporation are considered joint employers under the law. Both are liable for violations of the Americans with Disabilities Act and other employment laws. ABC Staffing Agency has an obligation to do something to take corrective measures and protect Sally from XYZ Corporation's discriminatory conduct. In other words, ABC Staffing cannot just stand by and do nothing while XYZ Corporation discriminates against Sally.

If you work for a staffing agency, remember that the corporate client who supervises and controls your work is not allowed to engage in discriminatory conduct against workers assigned to it by a staffing agency. Nor is the staffing agency allowed to participate in that discrimination or turn a blind eye. If you believe you may have a situation similar to that of our fictional employee "Sally," you should contact an experienced employment law attorney.

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