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Faush v. Tuesday Morning, Inc. - 808 F.3d 208 (3d Cir. 2015)


In determining whether a hired party is an employee under the general common law of agency, a court considers s right to control the manner and means by which the product is accomplished. A non-exhaustive list of relevant factors includes: the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. The court generally focuses on which entity paid the employees' salaries, hired and fired them, and had control over their daily employment activities. However, since the common-law test contains no shorthand formula or magic phrase that can be applied to find the answer, all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.


Appellant Matthew Faush is an African-American employee of Labor Ready, a staffing firm that provides temporary employees to several clients, including Appellee Tuesday Morning, Inc. According to Faush, Labor Ready assigned him to work at one of Tuesday Morning's stores, where he was subjected to racial slurs and racially motivated accusations and was eventually terminated.

Faush filed suit against Tuesday Morning, claiming violations of Title VII and the Pennsylvania Human Relations Act, among other statutes. The District Court granted summary judgment to Tuesday Morning on the ground that, because Faush was not Tuesday Morning's employee, Tuesday Morning could not be liable for employment discrimination. 


Was Tuesday Morning a "co-employer" of Faush for purposes of a claim of employment discrimination based on race?




The Court held that Faush presented sufficient evidence to permit an inference that Tuesday Morning was a co-employer of Faush for purposes of a claim of employment discrimination based on race, since Tuesday Morning’s payments to Labor Ready were functionally indistinguishable from direct employee compensation and Faush worked under the direct supervision and control of Tuesday Morning. Faush’s right to contract without discrimination was not implicated since Faush did not enter into a contract with Tuesday Morning or ever attempted to do so.

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