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Can I bring a wage lawsuit against a staffing agency or the company I am assigned to work for in California?

Every week our office is contacted by California workers that work for staffing agencies, temp services and/or temporary services companies. These are warehouse workers, factory workers, customer service representatives and the like. All different industries in California use temporary employees. 

Based upon what we see, time and again, these companies feel they don't have to follow the California Labor Code and/or the California Wage Orders because these workers are "just temporary."  Or, so it seems. If you're a employee or ex-employee of a California temp agency/ staffing agency/ temporary services company - then you probably have an unpaid wages lawsuit against the temp agency and the customer where you were actually placed to work. 

California staffing company wage lawsuits - temp agency unpaid wage case

All about California temp agency wage lawsuits: 

Can I bring a wage lawsuit if I work for a staffing agency in California? 

California wage laws protect all workers - including workers that are hired and paid by staffing agencies.  In this eye-opening article, I explain why you are probably owed thousands of dollars in unpaid wages if you're a staffing agency temporary employee in California. Truth be told, most staffing agencies and their customers (where you are assigned to work) regularly violate California's strict wage laws. 

Here are some common questions that I'm asked by workers that work for staffing agencies, temp services and/or temporary services companies in California: 

Can I sue a staffing agency for unpaid wages in California?

Can I bring a wage lawsuit if I work for a staffing agency?

Can I sue a staffing agency in California for overtime, meal breaks, rest breaks, or not getting paid for all the time I work?

Can I bring a wage lawsuit against a staffing agency or the company I am assigned to work for in California?

California staffing company wage lawsuits

Do you work for a staffing company in California?

If so, chances are that you have been subject to illegal wage practices. Meaning that you’re probably owed wages and/or money penalties by the staffing agency or the company where you’ve been hired out to work for.
 
Based upon what I see every week, California staffing company employees are treated very unfairly.  Both by the companies that they are hired out to work for and the staffing company that “employs” them.
 
If you work for a staffing company in California, then you are probably owed a lot of money in unpaid wages and penalties.
 
California has some of the strongest wage laws in the U.S. If not the strongest wage laws.  California wage laws are made by the California Labor Code and the California Wage Orders.
 

California Staffing agencies, staffing companies, temp services and/or temporary services companies that may be liable for unpaid wages and/or penalties

Here are some of the California staffing agencies, staffing companies, temp services and/or temporary services companies that we see and/or this article applies to. If you work for one of these companies (or similar companies) then you should find out whether you have a viable California wages class action lawsuit and/or PAGA lawsuit:
 
Aerotek, Adecco Staffing, Allegis Group, Randstad Holding, Kelly Services, Robert Half International, Barrett Business Services (BBSI) , Ameri-Force, Medical Services - travel nursing industry,  Select Staffing, AppleOne Employment Services, Manpower, PeopleReady, Exact Staff, BOLT Staffing, Pacific Staffing, Cornerstone Staffing Solutions, Affluent Staffing, Vertisource, Inc. and Pacific Staffing.
 
If you work for another staffing agency, temp agency or temporary services company, then you are encouraged to make sure that you don’t have a viable wages case against them.
 
California staffing agency lawsuits - can i sue a staffing agency for unpaid wages?
 
Getting a check for your unpaid wages!!
 

In this article we answer the following questions and/or address the following issues: 

 

Can I bring a wage case against the staffing company that I work for in California?

If I’m hired by a staffing agency in California, can I bring a wage case against the company I have been hired to work for?

What these staffing agencies look like in the real world

Why do companies use staffing agencies?

What if I have more than one employer ... (such as the staffing agency and the company that staffing agency refers you to work for)?

What about when you’re hired and paid by the temporary employment agency / staffing agency and you're supervised by another company?

Staffing agencies, meal breaks and wage lawsuits

What is a California staffing company's duty to provide a meal break for staffing agency employees?

Am I owed an hour's pay every time I'm not provided a legal meal break?

California rest period law for staffing agency employees

Can I recover money if I’m a staffing agency worker and I don't get a rest break?... You are entitled to an hour's pay when the staffing company (or the customer that you’re actually working for) doesn't provide you with a rest break

The facts and holding in the Serrano v. Aerotek case

What the Serrano case really stands for: in order to hold a staffing company liable for meal break and/or rest break violations, you have to be able to show that the staffing company failed to meet its duties under Brinker and Augustus

The story behind the story, so to speak, in the Serrano v. Aerotek case (Bay Bread went out of business and the only company that the workers could look to for unpaid wages was the staffing agency company)

Why you also may be owed paycheck stub violations (up to $4,000) as a staffing agency employee

How often must I be paid if I work for a temporary services employer, staffing agency and/or temp agency in California?

When do I have to be paid my final wages if I work for a staffing agency, temp agency and/or temporary services employer?

Why you also may be owed waiting time penalties as a staffing agency employee

 
 

Why is Bill Turley asked to testify concerning wage law legislation at the California State Senate and the California Assembly?

California's best wage lawyer - Bill Turley

A No B.S. straight-shooter lawyer

Believe it or not, Bill Turley is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk.

Can I bring a wage case against the staffing company that I work for in California?

Yes. If you work for a staffing company in California then the staffing company can be held to be your employer and/or your co-employer.  You can bring a wage lawsuit against the staffing company under many circumstances. I explain all of this in this article on California staffing agency wage lawsuits.
 

If I’m hired by a staffing agency in California, can I bring a wage case against the company I have been hired to work for?

Yes. Under California law, any person or company that controls your wages, hours and/or working conditions can be sued for violations of the California Wage Orders. If you are hired by a staffing agency and you work at one of their customer’s workplaces and the company where you work controls either your wages, hours and/or working conditions - then they can be held liable for violating California wage laws.
 
More specifically, an employer (a) exercises control over wages, hours, or working conditions, or (b) suffers or permits the work, or (c) engages the employee, creating a common law employment relationship. Martinez v. Combs (2010) 49 Cal.4th 35, 64.
 
Thus, an “employer” can be either the staffing agency or the company that you are actually working for.

Time and again we have brought wage class action cases and/or PAGA cases for workers that were hired by a staffing agency and then worked at a location with a different company.


What these staffing agencies look like in the real world

In the real world you’re hired and paid by a temporary employment company. These are also known as a staffing agency or staffing company.
Some examples of staffing agencies that we have seen are Aerotek, Adecco Staffing, Allegis Group, Randstad Holding, Kelly Services, Robert Half International, Barrett Business Services (BBSI) , Ameri-Force, Medical Services - travel nursing industry,  Select Staffing, AppleOne Employment Services, Manpower, PeopleReady, Exact Staff, BOLT Staffing, Pacific Staffing, Cornerstone Staffing Solutions, Affluent Staffing, Vertisource, Inc. and Pacific Staffing.
 
Not to suggest that there aren’t other significant or prominent staffing agencies in California.
 
Typically the workers (such as you) are hired by the California temporary employment company/ staffing agency.  The workers work in another location.  This location may or may not be at the business of the company that supervises the workers.  The workers are then paid by the temporary employment company/ staffing agency. 
 
We have also seen situations where the workers are supervised and/or administered by the staffing agency. Or the staffing agency has "on-site" management employees. 

Why do companies use staffing agencies?

Perhaps the best way to answer this question is to look at how the staffing agencies are marketing themselves to companies:
 
Today, businesses of all sizes need help managing increasingly complex employee resource needs such as recruiting, human resources management, employee benefits, payroll, garnishments, workers’ compensation claims, tax compliance, and unemployment insurance claims.
 
Businesses outsource these employee resource needs to VertiSource HR® so that we can provide human capital solutions that will help them avoid costly legal issues, keep their business in compliance, provide benefits to their employees at a lower cost, and more, all the while, promoting a culture focused on business strategy and objectives. When employees perceive they are a priority and that remaining compliant is a priority for their employer, respect and productivity flourish. VertiSource HR® delivers these solutions by establishing and maintaining a relationship with the employees at the client's worksite and by contractually assuming certain  rights, responsibilities, and risk.
 
I'm not suggesting that I believe the hype or this marketing. I am providing it here so you understand the services that the staffing agency provides to their customers. 
 


What if I have more than one employer ... (such as the staffing agency and the company that staffing agency refers you to work for)?

Under California wage law, you can have more than one employer. And, in certain circumstances - the company owner, managers and supervisors can be held liable for wage violations.
 
Under California wage law, every employer is liable for unpaid minimum wages and overtime compensation. California Labor Code Section 1194.  Section 1194 permits an employee with multiple employers to seek recovery of unpaid wages from any of them.” Noe v. Superior Court (2015) 237 Cal.App.4th 316, 333.
 
In California, wage and hour claims are governed by the Labor Code and wage orders, and both have equal dignity; the courts give “extraordinary deference” to wage orders and enforce their specific terms. Martinez v. Combs (2010) 49 Cal.4th 35, 61; see Brinker  v. Superior Court (2012) 53 Cal.4th 1004, 1026–1027; California Labor Code Section 1185.
 

What about when you’re hired and paid by the temporary employment agency / staffing agency and you're supervised by another company?

The California Wage Orders define an employer as anyone “who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.” California Wage Orders, Section 2(F).
 
This definition of an employer “reach[es] situations in which multiple entities control different aspects of the employment relationship. This occurs, for  example, when one entity (such as a temporary employment agency - aka a staffing agency) hires and pays a worker, and another entity supervises the work.” Martinez v. Combs (2010) 49 Cal.4th 35, 76.
 
An employer (a) exercises control over wages, hours, or working conditions, or (b) suffers or permits the work, or (c) engages the employee, creating a common law employment relationship. Martinez v. Combs (2010) 49 Cal.4th 35, 64.
 
The definition of “employer” is expansive because it “is intended to preclude a business from evading the prohibitions or responsibilities embodied in the relevant wage orders directly or indirectly—through indifference, negligence, intentional subterfuge, or misclassification.” Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 961–962; Vasquez v. San Miguel Produce, Inc., 31 Cal. App. 5th 810, 816-817 (2019). 
 
The courts have found that co-employers have equal obligations to comply with laws governing wages, meals and rest breaks. A co-employer cannot “discharge its affirmative obligation to authorize and permit meal and rest breaks purely through inaction.” Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 729.
 

Staffing agencies, meal breaks and wage lawsuits

The Wage Orders make  “every employer” responsible for providing lawful meal and rest breaks, even if the staffing agency and the worksite employer had different policies. Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 728 - 730. In Wackenhut, as the employer of guards assigned to private and public entities, a security staffing company had to determine if guards could take off-duty meal breaks, even if worksite clients demanded that the guards remain on duty during breaks. Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 931–932, 946–947.


What is a California staffing company's duty to provide a meal break for staffing agency employees?

Under California law, “An employer's duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if:

 1.  It relieves you of all duty,
 2.  Relinquishes control over you activities and
 3.  Permits you a reasonable opportunity to take an uninterrupted 30-minute break, and
 4.  Your employer does not impede or discourage you from doing so."
 Brinker vs. Superior Court  (2012) 53 Cal.4th 1004, 1040.

 
This is all based upon the ground-breaking California Supreme Court case - Brinker vs. Superior Court. I know the Brinker case very well, because I represented the workers in the Brinker case. I have often used the Brinker case in order to win workers wages in unpaid wages class action cases.
 
Just because you got a meal break, doesn’t mean that there isn’t a violation of California law. Besides the timing requirements, there are other legal requirements for meal breaks that we see violated all the time for staffing agency employees.


Am I owed an hour's pay every time I'm not provided a legal meal break?

When you have to take off and put on your protective gear during your meal break, you are owed an hour’s pay for every meal period when this occurred. California Labor Code Section 226.7.
 
If we use a conservative one meal period a day, that means that you are owed an hour’s pay for every shift that you worked.
 

California rest period law for staffing agency employees

Under California rest period law, employees are entitled to a net 10 minute rest period. This law applies to staffing agencies also.
 
The employer satisfies its obligation to provide rest breaks if it:

1.  Relieves its employees of all duty,
2.  Relinquishes control over their activities and
3.  Permits them a reasonable opportunity to take an uninterrupted 10 minute break, and
4.  Does not impede or discourage them from doing so.  Or provide an incentive to forego.
Augustus v. ABM , 2 Cal. 5th 257, 265, (2016).

 
In at least four different places in the Augustus decision, the California Supreme Court stated that an employer's obligation to provide rest breaks is the same as it is to provide meal breaks.
 
I know the Augustus case very well, because I wrote the winning brief in the Augustus Supreme Court case
 
 

Can I recover money if I’m a staffing agency worker and I don't get a rest break?... You are entitled to an hour's pay when the staffing company (or the customer that you’re actually working for) doesn't provide you with a rest break

 
Yes. If you do not receive a legally compliant rest break you are entitled to an hour’s pay at your regular rate of pay. California Labor Code Section 226.7; Augustus v. ABM, 2 Cal. 5th 257, 265, (2016).


The facts and holding in the Serrano v. Aerotek case

In the Serrano v. Aerotek case the workers were hired by an staffing agency - Aerotek to work at the Bay Bread company in California. The workers in the case sued Bay Bread and Aerotek for meal break and rest break violations.
 
The trial court in Serrano vs. Aerotek granted summary judgment to Aerotek based upon the temporary services contract required Bay Bread (the customer) to comply with all applicable laws. Aerotek provided its meal period policy to temporary employees like Serrano. Aerotek trained the employees on meal period policies during their orientation. And the policy required employees to notify Aerotek if they believed they were being prevented from taking meal breaks. Serrano v. Aerotek, Inc., 21 Cal. App. 5th 773, 777 (2018)
 
The Court of Appeal affirmed dismissal of the claims after concluding that “Serrano fails to convince us that anything more is required of staffing agencies when they provide temporary employees to other companies.” The Court further held that Aerotek was not liable for any meal period violations committed by Bay Bread. Serrano v. Aerotek, Inc., 21 Cal. App. 5th 773, 777 (2018).
 
In Serrano, the staffing agency actually took affirmative steps in order for their customer (Bay Bread) to provide meal breaks. Thus, there was not “inaction” as was the case with Benton v. Telecom Network Specialists, Inc., 220 Cal. App. 4th 701, 728-729 (2013).
 

What the Serrano case really stands for: in order to hold a staffing company liable for meal break and/or rest break violations, you have to be able to show that the staffing company failed to meet its duties under Brinker and Augustus

Let’s back up a tad. In the Brinker case and the Augustus case, the California Supreme Court held under California law, “An employer's duty with respect to meal breaks [and rest breaks] … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if:

 
 1.  It relieves you of all duty,
 2.  Relinquishes control over you activities and
 3.  Permits you a reasonable opportunity to take an uninterrupted 30-minute break (or a net 10 minute rest period), and
 4.  Your employer does not impede or discourage you from doing so."
 Brinker vs. Superior Court  (2012) 53 Cal.4th 1004, 1040; Augustus v. ABM , 2 Cal. 5th 257, 265, (2016).
 
Since the Brinker case and Augustus case, I have won class action case after class action case, getting money for workers when the companies didn't follow these duties. Since I was involved in both cases, I have been able to use these cases to help workers get tens of millions of dollars in unpaid wages. 
 
The workers in the Serrano case appeared to have argued that the employer/ staffing agency - Aerotek must “ensure” that the employees received meal breaks. Serrano v. Aerotek, Inc., 21 Cal. App. 5th 773, 781 (2018). Further, the workers in Serrano argued that Aerotek had a duty to “ensure” that the customer - Bay Bread - provided meal breaks. Serrano v. Aerotek, Inc., 21 Cal. App. 5th 773, 781 (2018).
 
The Serrano court addressed this as follows:
 
“...we do not mean to suggest that a temporary staffing agency meets its duty and immunizes itself from liability by merely promulgating a compliant meal period policy without regard to a client's implementation of it. Here, however, the undisputed evidence shows that Aerotek did do more than that. The contract between the parties required Bay Bread to comply with applicable laws, Aerotek provided its meal period policy to temporary employees and trained them on it during orientation, and the policy required them to notify Aerotek if they believed they were being prevented from taking meal breaks. Serrano fails to convince us that anything more is required of staffing agencies when they provide temporary employees to other companies.
Serrano v. Aerotek, Inc., 21 Cal. App. 5th 773, 781 (2018). (Emphasis added). 
 
The correct way to interpret Benton and Serrano is as follows.  If the staffing agency does nothing in regards to providing workers meal breaks and rest breaks (the “inaction” that was in the Benton case); then the staffing agency can be held liable for not providing meal breaks and rest breaks.
 
If the staffing agency takes affirmative steps, as was the case in the Serrano case, in order to provide meal breaks and rest breaks, then the staffing agency can only be held liable to not providing meal breaks and rest breaks if they caused or contributed to the not providing of meal breaks or they had knowledge of the workers not receiving meal breaks and rest breaks.
 
Because if the staffing agency has knowledge that the workers are not receiving legally compliant meal breaks and rest breaks, then the staffing agency is not “permitting a reasonable opportunity” for the workers to take a meal break or rest break. And thus, they are breaching one of their duties in Brinker/ Augustus
 

The story behind the story, so to speak, in the Serrano v. Aerotek case (Bay Bread went out of business and the only company that the workers could look to for unpaid wages was the staffing agency company)

Although the Appellate decision doesn’t say this - it appears that Bay Bread went out of business. I’m not 100% sure about this, but if you Google “Bay Bread California” it appears that Bay Bread is out of business.
 
Thus, the case proceeded against Aerotek, the staffing agency.
 
Which, of course, is usually the case.  If the customer (the company that the staffing agency employees are contracted to work for) is either out of business or may not have the assets to to pay a wages judgment, then it may make sense to proceed against the staffing agency for unpaid wages and penalties.

 

Why you also may owed paycheck stub violations (up to $4,000) as a staffing agency employee

You're also probably owed paycheck stub violations.  Since the company didn't put all of the hours you worked on your pay stub, didn't put your gross pay and didn't put the net pay owed to you on your pay stub, then you are entitled to paycheck stub violations. California Labor Code Section 226(a).
 
If the employer is a temporary services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment must also be provided on your pay stubs.
 
These 226 penalties are up to $4,000
 
 

How often must I be paid if I work for a temporary services employer, staffing agency and/or temp agency in California?

If you work for a temporary services employer, staffing agency and/or temp agency in California, you have to be paid weekly.  California Labor Code Section 201(b)(1)(A).
 
 

When do I have to be paid my final wages if I work for a staffing agency, temp agency and/or temporary services employer?

Not to give you a lawyer like answer, but it depends. Let me explain.
 
Generally, “if an employee of a temporary services employer is assigned to work for a client, that employee’s wages are due and payable no less frequently than weekly, regardless of when the assignment ends, and wages for work performed during any calendar week shall be due and payable not later than the regular payday of the following calendar week.” California Labor Code Section 201.3(b)(1).
 
Meaning, if you quit, are fired, or end your employment with the customer of the staffing agency (that is the place the staffing agency assigned you to), then you have to be paid at the end of the week. That is, the regular time that the staffing agency pays you weekly.
 
However, if you’re fired from working for the staffing agency, temp agency and/or temporary services employer in California, you have to be paid immediately. That is the day that you're fired or discharged. Otherwise, you’re owed a day's wages for every day you have to wait for your wages - up to 30 days.
 

Why you also may be owed waiting time penalties as a staffing agency employee

Please see the rules in the previous sections about when you have to be paid your final wages when you quit or are discharged when you work for a staffing agency, temp agency and/or temporary services employer in California. However, if the staffing agency or the employer you are assigned to doesn’t pay all of your wages - as is described in this article - you are also entitled to waiting time penalties.
 
Since all of your wages weren't paid timely at time of termination, you're also owed waiting time penalties.  California Labor Code Section 203. The waiting penalties you're owed are up to 30 days pay.
 
Under California Labor Code § 203(a):
 
"[i]f  an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days." In other words, "an employer that willfully fails to pay wages due an employee who is discharged or quits is obligated to pay the employee, in addition to the unpaid wages, an amount equal to the employee's daily wages for each day, not exceeding 30 days." Esparza v. KS Industries, L.P., 13 Cal.App.5th 1228, 1242(2017).

For example, if you made $15 an hour your waiting time penalties are as follows:
 
 
$15 x 8 hours = $120
 
$120 x 30 days = $3,600 
 

Questions or if you need help right now?


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This article isn't legal advice
 
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.
 
Just because we have gotten great results in so many other unpaid wage cases, doesn't guarantee in particular result in other cases. Including, your wage case. Every case is different. In other words, your mileage may vary.

 

 

William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”