In Jimenez v. U.S. Continental Marketing, Inc., plaintiff Elvia Jimenez was hired through a temp agency to work for a manufacturing company, U.S. Continental Marketing Inc. (USCM). Jimenez was ultimately fired by USCM, and she filed a wrongful termination case against USCM. At trial, the jury found in favor of the defendant soley because the jury believed that USCM was not Jimenez’ employer. This decision was based on the defense argument that the temp agency had relatively more control over Jimenez than did USCM.

The California Court of Appeal recently reversed the decision and the stage is set for a new trial. The Court of Appeal ruled that USCM was Jimenez’ employer under the California Fair Employment and Housing Act (FEHA). Jimenez was, in almost all respects, treated like an employee of the USCM, except that the USCM did not hire her, pay her, provide her benefits, or track her time. The temp agency did those things. But the Court of Appeal held that under FEHA, whether an entity counts as an employer depends on whether the employee’s allegations of wrongful conduct involve the terms, conditions, or privileges of employment under the control of the employer, and not on whether the employer exercised “more” control over the employee than a co-defending employer.

That USCM did not hire Jimenez, pay her, provider her benefits, or track her time did not bear on the issue of whether USCM was a liable employer under FEHA, because those factors were outside the scope of the terms and conditions of Jimenez’s employment with USCM. What was relevant was that USCM did exercise considerable direction and control over Jimenez under the terms, conditions, and privileges of her employment with USCM, including by terminating Jimenez’s services with the company.

At the new trial, the jury will be instructed that USCM was Jimenez’s employer under FEHA.

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