A temporary worker asserted claims for racial discrimination, harassment, retaliation, and battery. He settled his claims against the temp agency but tried to pursue them against the company that ran the facility. A federal judge in Southern Illinois told him to pack up and go home.
Menasha Packaging Company, LLC (a subsidiary of Menasha Corporation) operates a packaging facility in Edwardsville. To obtain workers at the plant, Menasha contracted with several staffing agencies, including Team Company, which conducted business under the names Staff Quick and Staffing Synergies.
The workers produce and prepare packaging products and are stationed throughout production lines. The work entails placing products in boxes on the line and taking boxes off the line. Menasha didn’t have any of its own production employees at the facility.
The staffing agreement between Staff Quick and Menasha provided that all personnel Staff Quick assigned were considered employees of Staff Quick and not Menasha. Further, Staff Quick was responsible for paying the workers’ wages, providing necessary personal protective equipment (PPE), handling workers’ comp claims, providing relevant insurance, and complying with all applicable laws, including employment laws.
Contained
Likewise, Staff Quick (not Menasha) was responsible for discipline and discharge issues. It had “line leads” who worked on the production lines. Menasha had no supervisors who regularly controlled the production lines, although it did have managers on site who could report issues to Staff Quick. It was still the staffing agency’s role, however, to decide what to do with its employees.
Menasha did have some input regarding the Staff Quick employees assigned to its facility. For example, Menasha was responsible for providing on-the-job training. In addition, it had the discretion to require Staff Quick personnel to leave its facility if it found them incompetent, negligent, or disruptive. But it needed to notify the staffing agency in such situations, and the agency would take it from there.
Box Seats
Lennil Johnson applied to Staff Quick in July 2016 and again in September 2017, when it assigned him to work at the Menasha facility and set his pay rate.
Johnson received his entry badge from a Staff Quick manager who worked on site at Menasha. On his first day at work, Johnson also met Saul Ruiz, who was Menasha’s production supervisor at the plant, responsible for overseeing operations, including working with the staffing agencies that supplied the production workers. Johnson’s duties included repackaging or assembling boxes and other tasks that didn’t require special skills.
Another Dimension
Johnson claims Ruiz and other Menasha managers at the plant engaged in discrimination. In particular, he says Ruiz denied him restroom breaks while Hispanic workers were granted them. He also alleges Ruiz and other Menasha managers used racial epithets on a few occasions.
For his part, Ruiz says Johnson was the one who was disrespectful. He claims Johnson intimidated others, “cussed,” and made a “barking sound” in the workplace.
Less than two months after Johnson began at the Menasha plant, a line lead from another staffing agency reported to Ruiz that Johnson wasn’t keeping up with his tasks. Ruiz says Johnson then “got verbal,” which caused Ruiz to ask him to leave the facility.
Johnson testified that as he was leaving the building, Ruiz and other Menasha managers struck, pushed, choked, and dragged him a few feet, and then tossed him to the door. Surveillance videos, however, depicted Johnson being escorted from the facility, without any shoving or other inappropriate conduct.
After Johnson exited the building, Ruiz sent an e-mail advising Staff Quick about the incident. The staffing agency in turn ended his assignment. He then filed a charge with the Equal Employment Opportunity Commission (EEOC) against it and Menasha. Although he and the staffing agency entered a settlement, he took his claims against Menasha to court.
Boxed In
For any claim under Title VII of the Civil Rights Act of 1964, there must be an employee-employer relationship. But determining who the employer is isn’t always clear. Sometimes, a worker may have multiple employers for Title VII purposes: his direct employer and also his indirect or de facto employer. Here, Johnson alleged Menasha was his indirect employer.
Courts look to a variety of factors to determine whether a company is a de facto or indirect employer, the most important of which is the extent of the alleged employer’s control and supervision over the employee. In this case, Johnson noted Ruiz and other Menasha managers provided orientation and safety training. In addition, the company retained the power under its contract with Staff Quick to require Staff Quick’s workers to leave the premises.
Bubble Wrapped
On the other hand, Staff Quick (not Menasha) hired Johnson, set his hours and pay, and assigned him to a work location. Under the staffing agreement, only Staff Quick was responsible for supervising and discharging its employees. And even though Menasha had the right (and in fact exercised the right with Johnson) to require disruptive or incompetent workers to leave the premises, it still had to give notice to Staff Quick.
When Ruiz encountered Johnson on his last day, he couldn’t discipline or discharge Johnson. He needed to notify Staff Quick and let it take action. As such, the court concluded the level of control exerted over Johnson clearly leaned to Staff Quick and not Menasha.
The other factors also didn’t establish Johnson was indirectly employed by Menasha. For example, his job duties were “fairly easy” and didn’t require special skills. The company didn’t provide him any specialized training. Further, although he claimed it provide him with goggles and gloves, this wasn’t crystal clear, and the staffing agreement itself required Staff Quick to provide PPE.
Finally, Johnson was a temporary worker, with no expectation of employment for a significant duration. For these reasons, the court entered judgment for Menasha because it wasn’t Johnson’s employer under Title VII. Johnson v. Menasha Packaging Co., No. 19-cv-835-SMY (May 3, 2021).
Box Score
This case illustrates some of the risks (and rewards) of using temporary workers. Many times, both the temp agency and its client are deemed “joint employers,” and thus both can be sued under Title VII and other employment laws. But at least in this case, the court held Menasha wasn’t a joint employer, in large part because both its agreement with Staff Quick and the practice inside the facility showed Staff Quick (not Menasha) was in charge of the temporary workers.
If you use temp workers and want to avoid being sued by them, make sure your agreements and actual practices yield control over them to the temp agency.
Steven L. Brenneman is a partner with Fox, Swibel, Levin & Carroll, LLP, in Chicago. You can reach him at sbrenneman@foxswibel.com.