41 Cal.App.5th 189
Cal. Ct. App.2019Background
- Jimenez was a temporary employee placed at U.S. Continental Marketing, Inc. (USCM) by staffing agency Ameritemps; she worked as a line lead supervising ~30 workers and reported to a USCM supervisor.
- Ameritemps hired, paid, provided benefits for, and tracked time for Jimenez; USCM provided workspace, equipment, training, clinic access, handbook, and disciplinary processes.
- USCM investigated complaints involving Jimenez, issued a warning under its progressive discipline, and later terminated her services at its facility (after which Ameritemps also terminated her employment).
- Jimenez sued USCM and an individual coworker under FEHA (hostile work environment, failure to prevent harassment, retaliation) and for wrongful termination in violation of public policy; some claims were dismissed pretrial and others went to jury.
- The jury returned special verdicts finding USCM was not Jimenez’s employer on several claims; the trial court denied a new-trial motion and entered judgment for defendants.
- On appeal the court considered whether, under FEHA and controlling regulations/caselaw, USCM could properly be treated as Jimenez’s employer for purposes of certain claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USCM was an "employer" of Jimenez for FEHA claims (hostile work environment, retaliation) | USCM exercised day-to-day direction and control over terms/conditions of her work (supervision, training, handbook, disciplinary actions, termination of services) so it is an employer | Because Ameritemps hired, paid, provided benefits, and tracked time, and Ameritemps issued formal termination, USCM was not her employer | Court held the jury verdict finding no employment relationship lacked substantial evidence; reversed and remanded for retrial on those claims with instruction that USCM was her employer |
| Whether hiring, payment, benefits, and timekeeping defeat an employer finding in temporary-staffing context | These factors are outside the contractual scope and should not negate the contracting employer's control over workplace terms/conditions | Those factors demonstrate the staffing agency (Ameritemps) was the employer | Court followed Bradley: such factors, when handled by the staffing agency, are not given weight; focus is on control over terms/conditions retained/exercised by the contracting employer |
| Whether appellant invited error by asking for a permissive ("may") joint-employer instruction | Appellant did not ask for a rule that clients are always employers; she argued control-based analysis tied to the temporary-staffing context | USCM argued appellant invited error by consenting to permissive instruction, so cannot complain now | Court rejected invited-error defense, explaining no bright-line rule and that the totality-of-circumstances control analysis governs |
| Applicability of same control-based analysis to common-law wrongful termination claim | Common-law wrongful-termination principles rest on similar direction-and-control/common-law employment tests and therefore support employer finding | (Implicit) Defendant would argue distinctions between statutory and common-law tests could undermine employer finding | Court held the same direction-and-control analysis supports treating USCM as employer for the common-law claim; reversed as to that claim as well |
Key Cases Cited
- Bradley v. Department of Corrections & Rehabilitation, 158 Cal.App.4th 1612 (2008) (contracting employer may be an "employer" under FEHA based on control over terms/conditions in temporary-staffing context)
- Vernon v. State of California, 116 Cal.App.4th 114 (2004) (direction and control is the keystone of the employment relationship; multi-factor analysis)
- Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019 (2003) (courts give substantial weight to an agency's interpretation of statutes/regulations it administers)
- Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980) (public-policy wrongful-discharge doctrine and common-law employment principles)
- Mathieu v. Norrell Corp., 115 Cal.App.4th 1174 (2004) (recognition that an individual may have more than one employer for antidiscrimination laws)