Temp worker alleges she was discharged from employment, not from assignment

Worker at bank accused of being verbally abusive during phone conversation about paycheck

Temp worker alleges she was discharged from employment, not from assignment

A worker claimed penalties under the Private Attorneys General Act of 2004 (PAGA) based on the employer’s alleged failure to timely pay final wages to a discharged employee as required by section 201.3(b)(4) of California’s Labor Code.

In a recent California case, a temporary staffing company hired the plaintiff as a temporary worker in July 2013 and assigned her to a temporary position at Bank of the West on Aug. 5, 2013.

On Aug. 16, 2013, a representative of the employer had a telephone conversation with the plaintiff about the delivery of her paycheck. The representative, claiming that the plaintiff was verbally abusive, relayed to her a message allegedly stating that, as a safeguard and precautionary measure for the bank, she should refrain from returning to the bank due to her violent and threatening behavior.

The plaintiff later testified that the employer representative basically implied that she was “fired” from her employment with the employer and not from her bank assignment.

The next Monday, the plaintiff reported for work at the bank. An employer representative escorted her out. An email from an employer representative told the plaintiff that her project at the bank ended effective that Monday and that she could not return to the work site unless instructed.

In line with the employer’s regular payroll schedule, the plaintiff was paid for her work for the weeks of

Aug. 12 and Aug. 19. She had no other work assignments with the employer.

The plaintiff sued the employer. The trial court dismissed her class claims, ordered the arbitration of her individual claims, and allowed her PAGA claims about wages to proceed.

Read more: California firm allegedly had unfair business practices, failed to pay wages

Courts on employer’s side

The trial court granted summary judgment in the employer’s favor. It found no violation of section 201.3(b)(4) of the Labor Code because the plaintiff was not discharged from employment with the employer, but only from her bank assignment.

In the case of Young v. RemX Specialty Staffing, the California Court of Appeal for the First District agreed with the trial court’s decision. First, the appellate court ruled that the plaintiff failed to show that there was a disputed factual issue of whether the employer discharged her.

The appellate court noted that an implied statement of termination did not amount to the express notice required by the employee handbook. In this case, the email sent to the plaintiff referenced only her bank assignment.

According to the court, there was also evidence showing that the plaintiff was still eligible to take new assignments from the employer, including the following:

  • The notes of employer representatives about communications with or about the plaintiff consistently referenced her removal from the bank assignment and made no mention of her termination from employment with the employer.
  • The plaintiff’s employee record had a “DNR” code, which meant “do not return” relating to her bank assignment. If she had been terminated from her employment, the record would have included the code “DNU,” meaning “do not use.”
  • The employer’s database of temporary employees listed the plaintiff as “available” and not as “inactive.”

Second, the appellate court rejected the plaintiff’s argument that she was entitled to immediate payment of wages due because her discharge from her temporary bank assignment amounted to a discharge for the purposes of section 201.3(b)(4).

That provision would be applicable if a temporary services employer discharged an employee from employment with it, not when the employer terminated an employee from a particular work assignment, the court concluded. Here, the plaintiff failed to show that there was a factual dispute on the issue of whether she was discharged from her employment with the employer, the court said.

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