Best Ohio Employment Discrimination Attorney Answer: Who do I sue for wrongful termination if I was working a job through a staffing agency? Can I be fired for taking FMLA medical leave? My job requires me to work for two different companies and I was let go for an unlawful reason, which company should I sue?
With the increase of staffing and temporary employment agencies, one can easily understand the question “who do you work for?” isn’t quite easy to answer. Usually, what our employment attorneys see in our office is an employee who, after engaging in protected activity (such as reporting or opposing race/color, religion, gender/sex, national origin, age, or disability discrimination or filing a Worker’s Compensation claim) at a client of a staffing agency, is told they are “no longer needed” and they should just simply “call back later” to see if there is more work for them to do. Or, our employment law lawyers work with employees who work for a small division of a larger governmental body such as a municipal police officer who receives checks from the County they work in. Unbeknownst to many of these employees, they were just let go for unlawful reasons and they should sue immediately. What happens when you file a lawsuit against an employer, and their defense is simply “You got the wrong employer!”?
Previously, our wage and hour attorneys blogged about this issue in the context of overtime and minimum wage violations under the Fair Labor Standards Act (“FLSA“). (See Top Wage Lawyer Top Reply: Who Is My Employer – The Staffing Agency Or The Job That I Was Placed At?). This issue was recently addressed in the context of age and disability discrimination claims.
In Cink v. Grant County, Oklahoma, the employee, Twilladean Cink worked for the Grant County Sherriff’s department for over thirty years when, upon her return from medical leave, was unceremoniously fired by a new boss who wanted to get rid of her because of her age and medical condition. Thus, she filed a wrongful termination claim under the Americans with Disabilities Act (“ADA“) and Age Discrimination in Employment Act (“ADEA“). At the trial level, the County made the argument that they didn’t employ Cink in the first place. The United States District Court, Western District of Oklahoma agreed and dismissed her wrongful termination case. On appeal, the Tenth Circuit Court of Appeal overturned the decision by applying basic principles of agency:
The district court resolved that question by applying the “joint employer” and “single employer” tests adopted by this court for determining employer status when multiple employer-entities may be involved. See Bristol v. Bd. of Cty. Commr’s, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc). While these tests frame the analysis differently, the district court correctly observed that both look to the control the alleged employer-entities exercised over conditions of employment—in either a separate-but-joint or effectively-unitary manner, see id. at 1218 (summarizing joint-employer test), 1220 (summarizing single-employer test). The district court acknowledged that Grant County was responsible for funding the Sheriff’s Office payroll, but emphasized that the Sheriff was responsible for hiring, training, and supervising staff and, indeed, made the decision to terminate Ms. Cink. The district court concluded that Grant County did not meet either test, because it exercised no supervisory control over Ms. Cink individually or over labor relations in the Sheriff’s Office generally.
The district court did not, however, address Ms. Cink’s distinct argument, under Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), that Grant County was her employer under basic agency principles, because the Sheriff is a Grant County officer and the Sheriff’s Office merely a subordinate department of Grant County. We note in this regard that a different judge of the same district court relied on Owens (and distinguished Bristol) to reach just such a conclusion in an ADEA/Title VII action brought against Grant County by another Grant County Sheriff’s staff member. See Payne v. Grant Cty., Okla., No. CIV-14-362-M, 2015 WL 4925782, *2-*3 (W.D. Okla. Aug. 18, 2015). As explained below, we conclude that Owens provides the proper analysis here. …
“Similarly, the Sheriff is an agent of the County. Like the Board members, he is elected by the body politic and acts on its behalf in enforcing the state’s laws. The Sheriff is an agent of the County for all purposes under his control and jurisdiction. He is an agent of the County whether or not he would be considered an agent of the Board of County Commissioners under traditional agency principles.” Owens, 636 F.2d at 286 (footnotes omitted). Significantly, this agency relationship sufficed to show that the County was the employer of Sheriff staff without need to resort to principles for treating distinct entities as one (as was later done in Bristol): “The sheriff and the county in this case are more analogous to a department and the corporation it operates within than to separate corporate entities.” Id. at 286 n.2. Finally, we added that “[a] fair interpretation of Title VII confirms our conclusion that the Sheriff should be considered an agent of the County,” explaining that “[w]hatever the reason for excluding employers with fewer than fifteen employees from Title VII coverage, it should not be construed to exempt a political subdivision with many employees from Title VII proscriptions on grounds that the immediate employing agent has fewer than fifteen employees.” Id. at 287. The same point applies equally to the ADA and ADEA, with their exclusions for employers with fewer than fifteen and twenty employees, respectively, see 42 U.S.C. § 12111(5)(A); 29 U.S.C. § 630(b).
So what is the takeaway? There are many different ways and tests to determine who your employer or employers are. Not only are each test complicated, it is very confusing for an employee to even be able to select which test may apply on his or her own. The best way to figure it all out is to engage the help of qualified employment law lawyers as quickly as possible.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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