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Hiding behind staffing agency won’t protect you; temps can sue, too

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

Don't treat temporary workers like second-class citizens when it comes to complying with employment laws. Contrary to popular belief, your organization isn't protected from job-discrimination lawsuits simply because the workers affected are provided by a temp agency.

Many employers wrongly assume that the temporary-worker relationship shields them from liability. Not so. In most cases, you and the temp agency are "joint employers" who share legal responsibilities. As the following case shows, temps can sue you just as other regular employees can. Make sure managers know that, too; they may be more willing to disregard company policies with temps.

One way to protect your organization from liability is to include a carefully crafted indemnity provision in your temp-agency contract. Also, it's always best to measure the impact any staffing change will have on a protected class (females, minorities, disabled, etc.).

Recent case: ADVO, a direct-mail advertising company, regularly used a staffing agency to supply part-time temporary workers at one of its California facilities. Because the staffing agency was minority-owned and usually recruited East Indian workers, about 85 percent of the workers at ADVO's facility were East Indian.

When a new regional HR director joined the company, she commented on the staff's "ethnic makeup." Soon after, she fired the entire temporary crew amid a dispute over work production. ADVO switched staffing agencies to one that sent half as many East Indian candidates.

Five ex-temps sued, alleging national-origin discrimination. A jury said the HR manager's comments, coupled with the staffing-agency change, were enough to rule in favor of the fired temps, awarding them $650,000 in damages. An appellate court agreed.

The court pointed out that the HR manager clearly voiced concern over the number of minority workers, and then she fired them just four months later. Even if she wanted a diverse work force, the court said, she couldn't legally achieve that goal by discriminating against East Indian employees. And the temp employees could sue ADVO because the company was a "joint employer" with the staffing agency. (Chopra v. ADVO Inc., No. A103168, CA Ct. App., 2004)

Final tip: Nothing is wrong with employing a staff made up primarily of employees from one ethnic background or nationality, and you shouldn't seek to weed out minorities, even if you feel they're overrepresented. A better plan: Recruit different types of minorities by undertaking affirmative-action steps, such as attending minority job fairs, enlisting referrals and placing ads in ethnic publications.

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