By: Thomas Paschos, Esq.
Thomas Paschos & Associates, PC
Haddonfield, New Jersey
In Faush v. Tuesday Morning, 2015 U.S.App.LEXIS 19977 (3d. Cir. Pa. November 18, 2015), Matthew Faush, an African American was an employee of Labor Ready, a staffing company that provides temporary employees to clients, including Tuesday Morning, Inc. Faush was sent by Labor Ready to work at a new Tuesday Morning store.
Faush claimed that he and fellow African-American employees were subject to racial slurs and discriminatory treatment by staff at Tuesday Morning. Faush filed suit against Tuesday Morning in federal court for racial discrimination in violation of Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, and 42 U.S.C. § 1981. Tuesday Morning filed a motion for summary judgment on the grounds that it never employed Faush or entered into a contract with him, as is required for his claims. The District Court granted Tuesday Morning's motion for summary judgment, holding that Tuesday Morning was not Faush's employer, and could not be liable under Title VII or the Pennsylvania Human Relations Act. Faush appealed.
The primary dispute was whether Tuesday Morning, as a client of the Labor Ready staffing service, was considered an employer of the temporary workers it used and liable for discrimination claims under Title VII of the Pennsylvania Human Relations Act. The Third Circuit stated that in order to prevail on his Title VII claim, Faush must demonstrate the existence of an employment relationship with Tuesday Morning. The Court provided that Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) governs the definition of employee in the Title VII context. The Court outlined the non-exhaustive factors from Darden used to determine whether a hired party is an employee. The factors are as follows:
The skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
The court held that a jury applying the Darden factors could find that Faush and Tuesday Morning had a common-law employment relationship, and therefore, that Faush was Tuesday Morning's employee for purposes of Title VII and the Human Relations Act. As such, the Third Circuit vacated the District Court's decision with respect to Faush's Title VII and Pennsylvania Human Rights Act claims and remanded for further proceedings.
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