1. You Be the Judge—Top Staffing Cases From 2017

2. You Be the Judge—Top Staffing Cases From 2017
PANEL FACILITATOR:
Stephen Dwyer, Esq., general counsel, American Staffing Association
PANELISTS:
Jillian M. Collins, Esq., associate, Foley & Lardner LLP
Eric H. Rumbaugh, Esq., partner, Michael Best & Friedrich LLP

3. Disclaimer
This presentation is intended as a summary of the issues presented and is not intended to provide legal advice. It is provided for the general information of the attendees. Legal counsel and advice should be sought for any specific questions and before taking any action in reliance on the information presented.

4. How This Will Work
The Attorneys will present their case for either the Plaintiff or the Defendant.
The Judge and/or Jury (i.e., you) will ask questions to clarify the facts.
The Jury will vote for either the Plaintiff’s or Defendant’s case.
The Judge will pronounce the verdict.
The Attorneys will explain the verdict on the basis of the legal theory applied in the real case.
Questions

5. Case No. 1

6. Reasonable Accommodations for Temporary Worker

7. Kick v. Temp. Services Inc.
The Players:
Kick: temporary worker for Temp. Services Inc. who was assigned to perform work as a receptionist for TSI’s client
Temp. Services Inc. (“TSI”): staffing company

8. Kick v. Temp. Services Inc.
The Key Facts:
Kick was on a six-week assignment as a receptionist for TSI’s client. She had early-stage breast cancer and missed a significant amount of work while being tested for breast cancer.
In addition, Kick informed TSI that she needed to take a full week plus an additional unknown amount of time off for tests, appointments, and radiation treatments. Kick did not provide TSI or the client with the expected duration of her impairment or say how much work she would likely miss.
TSI terminated Kick’s assignment. Thereafter, Kick did not contact TSI for additional work and did not reply to a subsequent assignment offer.

9. Kick v. Temp. Services Inc.
The Case:
Kick sued TSI and the client for disability discrimination under the Americans With Disabilities Act and genetic information discrimination under the Genetic Information Nondiscrimination Act.
The district court granted summary judgment for TSI and the client, finding that Kick could not establish that she was discriminated against or that any nondiscriminatory reason for her termination was pretextual. Kick appealed.

10. Kick v. Temp. Services Inc.
The Issue:
Did Kick request a plausibly reasonable accommodation?
The Law:
To determine whether a requested accommodation is reasonable, the court must consider the particular circumstances of the individual’s disability and employment position.
A request to be relieved from an essential function of the position is not a reasonable or plausible accommodation.

11. You Decide

12. Kick v. Temp. Services Inc.
The Decision:
Kick did not request a plausibly reasonable accommodation.
The Reasons:
Physical presence at the workplace was the most essential function of Kick’s job as a receptionist. Additionally, Kick never informed TSI or the client of the expected duration of her impairment or how much work she likely would miss.
Under the circumstances, the leave accommodation that Kick requested was not reasonable.

13. Case No. 2

14. Whether a Client Can Invoke Staffing Company’s Arbitration Clause

15. Jones v. Maverick Co. The Players:
Jones: temporary worker for Right Now Staffing, who was assigned to perform work for Right Now’s client, Maverick Co.
Right Now Staffing: staffing company that employed Jones and provided staffing services to Maverick
Maverick Co.: client of Right Now Staffing

16. Jones v. Maverick Co. The Key Facts:
As part of his job application process with Right Now, Jones filled out an employment application, which included an arbitration agreement between him and Right Now.
Maverick Co. was not a party to the arbitration agreement.
The arbitration provision required that “any dispute” between Jones and Right Now be resolved through binding arbitration.

17. Jones v. Maverick Co. The Case:
Jones sued Right Now and Maverick for violations of the California Labor Code in relation to the payment of wages during his assignment with Maverick.
Jones filed each of his claims against both Right Now and Maverick.
Maverick moved to compel arbitration.

18. Jones v. Maverick Co. The Issue: The Law:
Can Jones be forced to arbitrate his claims against Maverick despite the fact that Maverick did not sign the arbitration agreement?
The Law:
As a general rule, parties that did not sign an arbitration agreement may not compel arbitration of a dispute arising out of the scope of that agreement.
In certain circumstances, however, a nonsignatory may invoke the arbitration clause when the claims against the nonsignatory are based on the same facts and inherently inseparable from the claims against the signatory.

19. You Decide

20. Jones v. Maverick Co. The Decision: The Reason:
Jones must arbitrate his claims against Maverick.
The Reason:
The claims against Maverick arose out of and were intertwined with the arbitrable claims against Right Now.
Additionally, Right Now and Maverick were joint employers with and agents of one another, and therefore both of them could compel arbitration.

21. Case No. 3

22. Background Check Liability of Staffing Firm

23. Construction Cos. v. Accounting International
The Players:
Construction Cos.: construction companies that received staffing services from Accounting International
Accounting International: provided accounting professional staffing services to the Construction Cos., including assigning one individual who performed work for both Construction Cos.

24. Construction Cos. v. Accounting International
The Key Facts:
Accounting International contracted with the two Construction Cos. to place an accounting worker with them.
During the contracting process, the Construction Cos. signed documents acknowledging that Accounting International did not screen for drug use, administer a medical exam, conduct a criminal background check, or engage in any verification process other than conducting reference checks.
One of the Construction Cos. requested to permanently hire the worker, and Accounting International then conducted a seven-year criminal background check that did not reveal a criminal history.

25. Construction Cos. v. Accounting International
The Case:
The worker allegedly embezzled $160,000 from Construction Cos., and Construction Cos. discovered that the worker had a 13-year-old conviction for “securing execution of a document by deception.”
Construction Cos. sued Accounting International, alleging that it acted negligently and engaged in deceptive trade practices. Specifically, Construction Cos. alleged that Accounting International represented that it would conduct a background check and acted negligently by not conducting a full background check.

26. Construction Cos. v. Accounting International
The Issue:
Did Accounting International have a duty to conduct a full background check?
The Law:
If a party undertakes to provide services to another, either gratuitously or for compensation, a duty to use reasonable care may arise.

27. You Decide

28. Construction Cos. v. Accounting International
The Decision:
Accounting International did not have a duty to conduct a full background check.
The Reason:
Even if Accounting International assumed a duty to conduct a background check, its duty—at most—was to conduct a limited background check. Accounting International’s duty was limited to the scope of its undertaking, and therefore a seven-year background check was sufficient.

29. Case No. 4

30. Staffing Company Liability for Discrimination

31. Jane v. Old Guard The Players:
Jane: 83-year-old employed by Old Guard and placed at Insurance Co.
Old Guard: a security staffing company
Insurance Co.: contracted with Old Guard for security services

32. Jane v. Old Guard The Key Facts:
The staffing agreement between Insurance Co. and Old Guard specified that “Insurance Co. reserves the right...to request Old Guard to replace specific Personnel."
It also specified that: “Old Guard shall not discriminate against any employee...because of...age...in any of its activities under this contract...[including] the following: recruitment...demotion, transfers, or employment upgrading; layoff or termination..."
Insurance Co. asked Old Guard to remove Jane
Old Guard terminated Jane 10 days later due to lack of work

33. Jane v. Old Guard The Case:
Jane filed suit against Old Guard and Insurance Co. alleging termination on grounds of age in violation of the Age Discrimination in Employment Act of 1967
Jane settled with Insurance Co.
Old Guard moved for summary judgement, claiming that Insurance Co. retained power to reassign personnel and Old Guard was not employer for purposes of ADEA
Circuit Court agreed with Old Guard—Jane appealed

34. Jane v. Old Guard The Issue: The Law:
Did Old Guard discriminate by either honoring Insurance Co.’s request to remove Jane or firing Jane?
The Law:
EEOC Enforcement Guide
The [staffing] firm is liable if it participates in the client’s discrimination. For example, if the firm honors its client’s request to remove a worker from a job assignment for a discriminatory reason and replace him or her with an individual outside the worker’s protected class, the firm is liable for the discriminatory discharge. The firm also is liable if it knew or should have known about the client’s discrimination and failed to undertake prompt corrective measures within its control.

35. You Decide

36. Jane v. Old Guard The Decision: The Reasons:
Remand for further proceedings regarding transfer and no discrimination in termination.
The Reasons:
If Old Guard failed to follow its usual practices in responding to a client’s desire to have an employee removed, such a deviation can support a claim that the company should have known of the alleged discrimination.
Jane admitted that the termination was not discriminatory.

37. Case No. 5

38. Staffing Company Tort Liability

39. Estates v. Happy Harbor The Players:
Joe: employed by Staffing 1 and has experience welding
Gary: employed by Staffing 2 and has similar experience
Happy Harbor: contracts with Staffing 1 and Staffing 2 for cutting torch operators

40. Estates v. Happy Harbor The Key Facts:
Happy Harbor entered into contracts with Staffing 1 and Staffing 2 to provide temporary work.
Contracts included higher costs for longshore and harbor workers because of the increased cost of workers’ compensation coverage for those workers.
Staffing 1 was never informed that Joe was working on a barge and covered by the Longshore and Harbor Workers’ Compensation Act (“the act”).
Staffing 2 has a record showing Gary was moved to a position covered by the act.

41. Estates v. Happy Harbor The Case:
Gary and Joe were killed unloading steel coils, and their estates sued Happy Harbor for negligence.
Happy Harbor filed complaints to join Staffing 1 and Staffing 2 alleging they had a duty to train Gary and Joe.
Staffing 1 and Staffing 2 argued they were entitled to immunity under the act because they employed Gary and Joe and they obtained the insurance coverage that provided compensation under the act.
Alternatively, they had no common law duty to train Gary and Joe.

42. Estates v. Happy Harbor The Issue: The Law:
Whether Staffing 1 and Staffing 2 are immune from liability as employers under the act, or Happy Harbor is the employer.
The Law:
The Longshore and Harbor Workers’ Compensation Act provides in § 904: (a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under the act. In the case of an employer who is a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure the payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for such compensation for the benefit of the subcontractor.

43. Estates v. Happy Harbor The Law (Continued):
§ 905. Exclusiveness of liability
(a) The liability of an employer prescribed in § 904 shall be exclusive and in place of all other liability of such employer to the employee…except that if an employer fails to secure payment of compensation as required by this act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the act, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor’s employees only if the subcontractor fails to secure the payment of compensation as required by section 4 [33 USC § 904].

44. You Decide

45. Estates v. Happy Harbor The Decision: The Reasons:
Staffing 1 and Staffing 2 are dismissed from the action.
The Reasons:
The contracts between the staffing firms and Happy Harbor did not impose on the staffing firms the duty to train Gary and Joe on how to unload steel coils from barges.
Staffing 1 and Staffing 2 provided compensation under the act.

46. Questions?