January 29, 2016 Top Story

Co-Employers Both Liable under the ADA

Staffing agencies and clients have independent obligations to disabled employees

Caitlin Haney

Staffing agencies and their clients (joint-employers) who cite inconsistent justifications for terminating an employee are precluded from summary judgment victory in a discriminatory termination case, according to Burton v. Freescale Semiconductor, et al. Further, joint-employers that retroactively document a worker’s shortcomings after deciding to terminate the worker open themselves to an inference of pretext under the Americans with Disabilities Act. Section leaders say the decision demonstrates how to advise parties seeking to avoid or prosecute a potential joint-employment relationship.

ADA and Retaliation Claims

The defendant Freescale Semiconductor, Inc. relied on temporary employees provided by the defendant Manpower of Texas, L.P., a staffing agency. The plaintiff began working for Freescale as a temporary employee in 2009. The first two years of her employment were uneventful, and she received positive to neutral performance reviews. In 2011, the plaintiff began experiencing some performance issues at Freescale, including inhaling chemical fumes when she failed to follow safety procedures. Inhaling the fumes allegedly caused the plaintiff to experience chest pains and heart palpitations, for which the plaintiff filed a workers’ compensation claim.

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