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Discrimination in the workplace that Companies permit to continue, and what you can do about it. 

There are some crucial jobs in a workforce that allow a business to operate seamlessly but so often they are usually independent contractors. These positions include housekeeping, security and maintenance teams. A lot of times these individuals become part of your collective team, and receive gifts for Christmas or birthdays. 

However, these individuals also work in a quagmire where worker rights can be overlooked and companies can get away with the most heinous types of worker discrimination and wrongful termination. 

So imagine if a security guard or maintenance person who is contracted to work at your office is subjected to racial slurs, what happens? Who is going to investigate? The company that they work for, or the company that hired them to work in this building? Unfortunately, what usually happens is no one does much of anything and the contract personnel probably gets transferred to another location, while the guilty party is never confronted or loses their job.

The state of California has very strict laws concerning harassment in the workplace, but these laws are not airtight and often leave openings or loopholes that allow companies to get by with these types of situations. In the examples above, the contract or temp worker is probably an employee hired by a private company which was contracted by the building where they works everyday. In this case, the building was the client not the employer. Now we see the creation of the “Ghost Employee”.  Sad to say, this “tripartite” relationship creates a situation whereby both the private security company and the building are able to dribble around the discrimination laws. The reality is that the contract worker is a “ghost employee” and has very limited chances of winning a wrongful termination suit.

There are benefits to having this Vendor/Client relationship. It reduces costs and minimizes legal responsibilities. California’s Fair Employment and Housing Act (“FEHA”) was created in part to address harassment by and between employees. There are several requirements that FEHA demands of employers such as preventing harassment in the workplace and taking action when it does occur. This can include investigation into a harassment complaint and discipline, even termination of the harasser.

The FEHA only requires certain actions such as requiring that no employee is to be subjected to harassment. The regulations interpreting FEHA define “employee” as any individual “under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” Cal. Code of Regs., Title 2, §11008, subd. (c).  

In the case of the above examples, these workers are in a type of no man’s land! If they complain to both their company and the building about an harassment issue, they will both “pass the hot potato” to the other claiming they have little authority to deal with it. After this back and forth finger pointing the contract worker will most likely be transferred.

Sad to say, the contract worker will not get any better attention from his employers. They have little to no motive or obligation to launch a full scale investigation claiming they have no authority to investigate a non-employee much less discipline or terminate someone that is not a company employee. In an effort to minimize the problem and move on, they may just be offered a transfer to another location. Problem solved, for them.

In a positive step forward, this loophole is being focused on by the courts and slowly being addressed.  The definition of employee is being reexamined and especially as it relates to the “temp” workers. Temp workers are seen as performing the same work and having the same responsibilities as the employee. The courts have begun to look beyond the payroll to determine the status of employment. The worker may be considered an employee of that company for purposes of FEHA, if the worker is considered under the sufficient control and direction of the company. This in spite of how the temp agency and/or company characterize the employee.  See Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174; see also Jiminez v. U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189.

The Ghost Worker as Employee: 7 Determining Factors  

In an attempt to determine the amount of control and direction, the courts have used a number of factors.

  1. How and in what manner is the worker paid?
  2. Who owns the equipment operated by the worker?
  3. Does the worker perform duties on the premises of the employer?
  4. Does the employer have the authority to promote or discharge the worker?
  5. Does the employer provide training for the worker?
  6. Does the employer have the power to determine the schedule, work load, projects and compensation?

See, Vernon v. State of Calif. (2004) 116 CA4th 114

The challenge of ending the Ghost Employee dilemma has been and is a difficult battle. In order to prove a temp worker is an employee under the FEHA is often a daunting prospect in a harassment case but progress is being made each time there is a win or even a loss.

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Urbanic & Associates – Discrimination Attorney

Have you been the target of workplace discrimination, harassment, or retaliation? If so, call Discrimination Attorney, James Urbanic. James Urbanic is a Los Angeles discrimination attorney, who has been helping clients since 2000. The trusted legal team at Urbanic & Associates has been dedicated to aggressively advocating our clients’ rights, helping them stand up to even the most formidable opponents in any legal setting. To discuss your options with attorney James Urbanic, call him at (310) 216-0900.