Are you responsible for your employees’ living conditions? Do you have to ensure that your employees have habitable sanitary housing? I know what some of you are thinking: There she goes again, that crazy brunette employer’s attorney with her off-the-wall questions. (C’mon, admit it you think I may really have flown off the deep end now, right? You may be right, but not for that reason. Anyway, I digress.) I know,
The general rule is that employers are not responsible for their employees when they leave the workplace if there is no connection to the employee’s job. OK, so when would an employer have any responsibility for an employee’s living conditions or really anything unrelated to the job or work site? Some jobs do require housing, because they require a temporary relocation. In particular if your business uses temporary seasonal or foreign guest workers your responsibilities will extend beyond the actual work site. You must then provide your workers with clean, safe housing and transportation to and from the work site. You’ll also have to provide nominally priced meals or free access to cooking facilities.
What if you don’t? If your workers are the aforementioned foreign guest workers, you could face a discrimination claim under Title VII of the Civil Rights Act –even if you contracted those functions out to someone else. Let’s look at a real case to see how that works.
Two fruit growers in Washington State hired Global Horizons, a now-defunct labor contractor to recruit workers from Thailand under the H-2A guest worker program. The H-2A program allows employers to specifically recruit and hire foreign workers when there are not enough domestic workers to perform the work in question. Under the H-2A program, the employer must then provide all such workers with housing, transportation and meals.
Global Horizons and both fruit growers agreed to share responsibility for managing the Thai workers’ work at the work site, but Global Horizons was also contractually responsible for their housing, transportation, meals or access to cooking facilities. The EEOC sued Global Horizons and the fruit growers for discrimination under Title VII, alleging that Thai workers were given more demanding work and worse housing conditions than Mexican workers. The Thai workers allegedly were given unsanitary, unsafe housing, transportation and cooking facilities, whereas Mexican workers allegedly received better housing, transportation and cooking facilities.
The Ninth Circuit Court of Appeals, reversing the trial court’s ruling held that the growers and Global Horizons could be held jointly liable for the deplorable treatment of the Thai workers, even though they delegated those responsibilities to Global Horizons. Why? The court found that Global Horizons and the growers are joint employers. They jointly controlled the work and work conditions of the Thai workers. Even though the fruit growers contracted out the responsibility of managing the living conditions, the growers had ultimate responsibility under the H-2A guest worker law. The growers still could have ended the contract with, held back payment from or made other demands of Global Horizons if it was dissatisfied with how Global Horizons discharged those responsibilities. As the court said, “The power to control the manner in which housing, meals, transportation, and wages were provided to the Thai workers, even if never exercised, is sufficient to render the Growers joint employers as to non-orchard-related matters.” The court further held that if the growers knew or should have known of the alleged discrimination and did nothing about it then they would be jointly liable with Global Horizons.
The EEOC alleged that one grower did have the requisite knowledge, as workers had complained about the substandard treatment and how it compared to treatment of the Mexican workers. The court remanded the case to the trial court to allow the EEOC to get evidence that the other grower knew or should have known about the discrimination and for further proceedings consistent with its ruling.
So now what? Do we have any takeaways? You bet we do! Here they are:
- If you outsource functions you are legally required to perform with respect to your employees you may be jointly liable with the contractor for any discrimination or other bad acts by the contractor. If you can’t do it directly you can’t do it through a third party.
- You may be liable for discrimination against one legally protected class, even though you hire members of another protected class and treat them well. In this case, the growers and their contractor still mistreated a group of people on the basis of their national origin.
- Sometimes an employer will be liable for harm arising out of matters not directly related to the work or the work site, if they are required by law to take care of those matters. In this case, housing and transportation and cooking were not related to the work or the work site–and they usually aren’t–but the H-2A program requires employers to provide these necessities to foreign guest workers. Performing these functions in a discriminatory manner in turn can give rise to a discrimination claim.
- It pretty much all boils down to this: If you’re going to discriminate, if you’re going to look to shirk your responsibilities to your employees, don’t be so surprised when you get caught–and ultimately end up paying the price. As they say, you reap what you sow. (Really you didn’t expect me to just walk away from that one, did you?)
I think I’ve made my point, so Bye for now!
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