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Do I Have Two Bosses? Temp Agencies And The Dual Employer Relationship.

By Rolando Gutierrez

You apply for a job through a temp agency, which then sends you to work for a contracting employer where you get injured on the job or suffer an employment violation. Who do you sue? Who is your “employer?”

Generally, an employment relationship is not automatically defined by labels such as “employer,” “employee,” or “independent contractor.” The degree of control over another individual's work is what defines an employment relationship.

The Industrial Welfare Commission Wage Orders broadly define “employer” to include “any person… who directly or indirectly employs or exercises control over the wages, hours or working conditions of any person…,” and further define “employ” to mean “engage, suffer, or permit to work.” See, e.g., 8 Cal. Code Regs. § 11140, (2)(C) and (2)(F). These definitions reach situations where multiple entities control different aspects of the employment relationship and are specifically intended to include both temporary employment agencies and the employers who contract with such agencies to obtain temporary employees. Martinez v. Combs (2010) 49 Cal.4th 35, 59-60. The language “directly or indirectly” was intended to be broad enough to reach through “straw men” and other sham arrangements to impose liability on the actual employer. See id. at 71.

Recent California legislation has codified the common law Joint Employer Liability doctrine under section 2810.3 of the California Labor Code, which now imposes joint and several liability on both temporary employment agencies and contracting employers for, among other things, workplace injuries, workplace discrimination and harassment, and wage and hour violations, regardless of the amount of actual control a company asserts over an individual.

For additional information, please contact the attorneys at GUTIERREZ & BLANCO, PLC.

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Rolando J. Gutierrez, Esq. is a litigation attorney and founding partner of GUTIERREZ & BLANCO, A PROFESSIONAL LAW CORPORATION, handling matters involving personal injury, medical malpractice, wrongful death, wage & hour individual and class action claims, consumer class action litigation, and business litigation. He can be reached at (310) 904-6210, or by email at rolando@gutierrzblanco.com.

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