For years I have been at the forefront of employment law questions that turn on who the actual employer is. Many of these cases involve employees who are paid through a temporary agency otherwise known as a staffing agency or labor broker, but whom receive all management and supervision from another entity. Legal words used to describe these employment relationships include joint employer, general employer, special employer, borrowed employees, lending employers.
In determining who the actual employer is, the right to direct the work is important. Who is managing and supervising the work? The reality of the employment relationship, and not the paper it is written on, controls the parties’ status, Santa Cruz Poultry v. Superior Court, 194 Cal.App.3d 575, 582 (1987). The place where you are performing services may be your employer; not the temporary staffing agency who placed you there.
Factors relevant to determining whether an employee is the borrowed employee [a special employee] of another include:
1) whether the borrowing employer’s control over the employee and the work he is performing extends beyond mere suggesting of details or cooperation;
2) whether the employee is performing the special employer’s work;
3) whether there is an agreement, understanding, or meeting of the minds between the original and special employer;
4) whether the employee acquiesced in the new work situation;
5) whether the original employer terminated his relationship with the employee, Oxford v. Signal Hill & Gas Co., 12 Cal.App.3d 403, 410 (1970) held that the special employer’s right to terminate the employee from the special employment is of significance and not whether the special employer could terminate the employment relationship with the original employer];
6) whether the special employer furnished the tools and place for performance;
7) whether the new employment was over a considerable length of time;
8) whether the borrowing employer had the right to fire the employee and;
9) whether the borrowing employer had the obligation to the employer…Of these considerations, the primary one in determining whether a special employment relationship exists is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised, or not, Wedeck v. Unocal Corp., 59 Cal.App.4th 848, 857 (1997).
In an economic reality test, besides control, the focus is on the length of the relationship between the two entities, the skill required, the investment in facilities for work, and the opportunities for profit or loss from the activities, Bartels v. Birmingham, 322 U.S. 126, 130 (1950). The economic realities test is generally used in cases involving the Fair Labor Standards Act, E.E.O.C. v. Zippo Manufacturing, 713 F.2d 32, 36 (3rd Cir. 1983). New laws require employers to identify their actual names and addresses. A failure to identify the name of the employer on your pay stub is wrong. Contact our firm if you lost your long term job where you were paid through a temporary staffing agency, or the entity whom employed you has failed to properly identify themselves. Contact us, or call 1-877-525-0700 toll free to consult with an Employment Lawyers Group Los Angeles wrongful termination lawyer, supervised by Karl Gerber who will be the lead attorney on your case.