Temporary employees are typically hired to fill temporary vacancies, to help with increased work demands or to cover seasonal business needs. They can be hired directly or through a staffing agency, meaning that the staffing agency is theoretically their boss, not the employer that uses their services. Although temporary employees won’t be given the same protections as regular employees, temps still have rights under federal and New Jersey law.
Temporary employees have the same federal protections under Title VII of the Civil Rights Act of 1965 (“Title VII”) as regular employees. Title VII prohibits discrimination of employees on the basis of race, color, age, sex, religion or national origin in hiring, firing, promotion and discipline. Covered employers under Title VII must have more than 15 employees. The company (hiring business or agency) that has “direction and control” over the temporary employee determines where liability for violations of Title VII falls. Also, New Jersey’s Law Against Discrimination (“NJLAD”) gives broader protections than Title VII. NJLAD covers all employers, no matter the number of their employees. In addition to the protected classes in Title VII, NJLAD covers marital status, domestic partnership status, sexual orientation, genetic information, ancestry, etc. NJLAD also doesn’t have a maximum amount for money damages and allows supervisors to be individually liable.
A temporary employee may be entitled to the federal Family Medical Leave Act (“FMLA”) – as long as he or she has been employed for at least 12 calendar months and has worked at least 1,000 hours in the 12 months immediately prior to the date that leave is requested, in addition to satisfying the other requirements for leave under the FMLA. The FMLA applies to employers with 50 or more employees and, if the staffing agency falls into this category – since it may be the temporary employee’s primary boss – it is responsible for giving FMLA leave and for reinstating a returning temp from FMLA leave. The employer to which the temp is assigned has to reinstate him or her only if it continues to use the same staffing agency to fill the position that was held by the returning employee. But if another employee, permanent or temporary, fills that position, then the employer is not require to reinstate the returning temporary employee.
New Jersey has a similar law called the New Jersey Family Leave Act (“NJFLA”) that allows temps to also be covered. NJFLA has the same requirements as the FMLA, but there are some differences. Although the FMLA can be applied to a temp’s own medical conditions, NJFLA cannot and must only be applied to family members. While FMLA allows for 12 weeks of eligible leave within a 12-month period, NJFLA gives 12 weeks of eligible leave in a 24-month period. While the FMLA applies to all employers with 50 or more employees within 75 miles of each other, NJFLA applies to all U.S. companies with 50 or more employees.
Finally, in cases where a temporary employee could be given leave under both the FMLA and NJFLA, the temporary employee can only take leave for a maximum of 12 weeks in a 12-month period. However, a grant of leave provided for under the FMLA for the temporary employee’s own medical condition may be followed by an additional grant of leave for the temporary care for his/her family member under NJFLA.
Finally, if a staffing agency has 15 or more employees then the Americans with Disabilities Act (“ADA”) applies and its temporary employees are protected. Under the ADA, staffing agencies must provide reasonable accommodation to disabled persons during the application process, and they may be liable if they apply their own or their client’s discriminatory standards during the application process. Additionally, under the ADA, clients of the staffing agencies (aka the employers) must provide reasonable accommodation to disabled employees and they may be liable if they request or directly apply a discriminatory standard during the application process or during the temporary employee’s assignment.
The status of a temporary employee is by its nature tentative. But there is one thing for sure – these workers have rights. If you are unsure of your status or have questions related to temporary employees, an experience employment attorney from our firm will be able to resolve any of those issues. Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal collaborated with me on this blog.