Liability in a Workplace Harassment Case

Answer:

Over the past 20 years since I became an attorney, I’ve noticed that, in America’s workplace, who is considered an employee and who is not considered an employee has changed. Over the last 20 years, there’s been a substantial switch toward using temporary or contract employees. Sometimes those assignments last only for a couple weeks, but other times employees are actually employees of Company A but report to Company B’s work location, and their managers on a day-to-day basis are actually managers that work for a different company.

In these scenarios, who’s liable and who’s the employer? Sometimes we get an employee that works for a temp agency or a contract employee who gets sexually harassed by a manager who works for a different company, or the temp agency employee turns in a work note and the next day the company where he’s been reporting to work tells the temp agency that the assignment’s over and that they don’t need that employee anymore.

It’s important to understand that under California law, most of the time, we can consider both of the temp agency and the other employer to be joint employers. They both share management duties of the employee, are both making decisions as to how much the employee is getting paid and when the assignment will end, and both define what the terms and conditions of their working conditions are. If you’ve been working at a location and have subject to what you believe is unlawful conduct, but it is at the hands of somebody that actually doesn’t work for your employer, you should understand that you still have rights. Liability doesn’t run just to who’s on your paycheck, but also to whomever might direct your work on a day-to-day basis. In California, that actually covers customers as well. In California, if you’re being subjected to harassment by a customer, who is not your employer, then the employer still has an obligation to take steps to make sure that you’re not being subjected to unlawful harassment or discrimination.

If you’re working in a workplace and you’re subject to sexual harassment, discrimination, harassment based on race, or another reason that you believe is unlawful, the fact that it’s less than clear who is doing the harassment and who their employer is should not be an impediment. It’s important for you to talk to a law firm that has expertise in identifying who may or may not be liable. If I can answer any questions for you, please feel free to give us a call.