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Retailer's temp worker qualifies as employee in race bias case


A temporary agency worker who was sent to a retail store can be considered a store employee because of the store’s control over his employment, pay and daily activities, says an appeals court in reinstating the worker’s racial discrimination claim against the retailer.

Matthew Faush, who was employed by staffing agency Tacoma, Washington-based Labor Ready, a unit TrueBlue Inc., had been sent to a new store operated by Dallas-based Tuesday Morning Inc., according to Wednesday’s ruling by the 3rd U.S. Circuit Court of Appeals in Matthew Faush v. Tuesday Morning Inc.

Among other incidents during his time at the store in May 2011, Mr. Faush and two other African-American temporary employees were told by the store owner’s mother to work in the back of the stores with the garbage until it was time to leave, according to court documents. Mr. Faush alleges he and his coworkers were later terminated.

Mr. Faush filed suit against Tuesday Morning in U.S. District Court in Philadelphia in December 2012, charging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, among other charges.

The District Court in Philadelphia granted Tuesday Morning summary judgment dismissing the case in January 2014 on the basis the retailer was not Mr. Faush’s employer.

A three judge appeals court panel unanimously reinstated Mr. Faush’s Title VII charge. A rational jury could conclude Mr. Faush had a “common-law employment relationship” with Tuesday Morning, said the ruling.

“Although Tuesday morning made its payments to Labor Ready, rather than to the temporary employees, these payments were functionally indistinguishable from direct employee compensation,” the ruling said.

Tuesday Morning also had ultimate control over whether Mr. Faush was permitted to work at its store, and had control over the temporary workers’ daily activities, the ruling said, in remanding the case for further proceedings.

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