More protections for ‘temps’ and subcontracted employees

Q: I WORK at UX Corp, a big national processing plant. However, I am employed by ABC Agency, a subcontractor of UX Corp. ABC Agency pays my wages. We often work more than 8 hours per day at UX Corp but we are not paid overtime. When we complain to managers at UX Corp about lost wages or unfair treatment, we’re told to take it up with ABC Agency because UX Corp is not our employer. However, ABC Agency does not care about us. What are our rights? 
A: Effective January 1, 2015, employers in nearly all industries will be held accountable for their labor contractor’s failure to pay wages, or provide adequate workers compensation benefits, to workers. A “labor contractor” is someone who supplies workers to a “client employer” to perform labor within the client employer’s usual course of business (ABC Agency in the above inquiry is a labor contractor). A “client employer” is a business entity that obtains workers from a labor contractor to perform work within the usual course of its business (UX Corp in the above inquiry is a client employer).
Courts also recognize that labor contractors and their client employers are “joint employers” for purposes of addressing issues regarding discrimination. It doesn’t matter if contractors and their client employers have an agreement stating that only the contractor is responsible for employment law violations. The Courts will decide whether a client employer is a joint employer with the contractor based on the “totality of the circumstances” of the work relationship.
If the client employer (like UX Corp) has the “right to control” the workers provided by the contractor, then the client employer is a joint employer and will be liable for any employment law violations. The client employer’s “right to control” means that the client employer has the right to make decisions about the hiring, firing, transfer, promotion, discipline, training, wages, and other terms and conditions of employment of the worker.
Courts will take into account the following factors in determining whether the client employer has an employment relationship with the worker:
a) the extent of the company’s right to control the means and manner of the workers’ performance
b) the payment of wages and other employment benefits
c) the ownership of the equipment necessary to performance of the job
d) the location where the work is performed
e) the obligation of the company to train the employee
f) the authority of the company to hire, transfer, promote, discipline or discharge the employee
g) the authority to establish work schedules and assignments of the employee
h) the skill required to do the work and the extent to which it is done under the direction of a supervisor
i) whether the work is part of the company’s regular business operations,
j) the duration of the worker’s employment and the duration of the relationship between the contractor and its client
k) the level of control the company asserts over an individual’s access to employment opportunities.”
Of the factors above, the extent of the company’s right to control the means and manner of the workers’ performance is the most important.
The issue of “joint employer” relationship is also on national news recently due to a decision by the National Labor Relations Board (NLRB), the government agency that handles issues relating to workers’ right to engage in collective action. The NLRB ruled that a Silicon Valley recycling center was a “joint employer” with the staffing agency it hired to provide janitorial services to its facilities. The ruling meant that companies that use workers hired by another company, including temp agencies, contractors and even fast-food franchisees, are also responsible for the labor violations of its contractors.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.