Scenario: Bill places a application to work as a temporary worker. The agency places him on the job. One day the client (company the agency placed Bill) called the agency and says that they are ending Bill's assignment and he doesn't need to return. The client claims Bill did a misconduct at work twice, but the temporary agency manager never received a complaint regarding her worker Bill. As of right now the agency doesn't have anything in Bill's area; so they advised him to file unemployment.
If a potential employer calls the temporary agency manager, would it be wrong for the agency to say Bill was terminated? And would it be wrong for them to give him a bad reference when they never received a complaint prior to the one phone from the client saying Bill's assignment as ended.
A client can't terminate a temporary worker as the worker doesn't work for the company and only works for the temporary agency. So to tell a potential employer they were terminated would be incorrect in my opinion. I believe there is a difference between the client not wanting the worker's "help" anymore and being terminated. Only the employer which is the temporary agency can terminate the worker and in a case like this they wasn't terminated but the assignment ended. Would it be right for the temp. agency to give a bad reference about the worker to a potential employer when the manager of the agency in fact stated on record that she never received a complaint about the worker? Would it be right for her to base her statement to a potential employer only on the words of the client when in fact they never informed her of anything wrong the client has done? The is now hindering the ex-temp worker from getting a job because of what the manager of the agency can and probably will say.
Employment / Labor Attorney
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
There are all kinds of definitions of "wrong." Moral, legal, technical, whatever. Many things that are amoral are completely legal. And there are different meanings of the word "terminated." You mention a "bad reference" but that is a subjective term, and we need more specifics to know what is going on. Your question and details seem to combine all of these things.
First, for many law-related purposes, the temp agency and its client many be considered joint employers.
Second, "terminated" in the dictionary-definition sense means "ended." It is neutral in that it does not indicate who the moving party was. However, these days, many people interpret the word "terminated" to mean "fired."
There is no requirement that the temp agency receive more than one negative report from the client before considering an employee to be a "bad employee."
To the extent you are asking about defamation: Defamation can be libel (written) or slander (oral). Each state has its own legal definition. Generally, defamation is a false and unprivileged statement which exposes a person to hatred, contempt, ridicule or injury, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in his or her occupation. Some kinds of defamation require the plaintiff to prove actual harm. Other kinds of defamation constitute defamation per se, which means harm is assumed due to the nature of the defamation. Statements of opinion are not considered defamation except in extremely limited and highly unusual circumstances. You should consult with an attorney in your state to determine how your state defines defamation.
I see nothing illegal in what you describe, and nothing that offends my sense of morality. However, there are certainly more details than those you posted here, and the best thing to do is to retain an attorney with whom you can go into great detail about what happened and why, and who can help you come up with a strategy to minimize this bad experience.
You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site www.nela.org. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
If the temp agency received a report that the temp worker was accused of 2 separate misconducts at one temporary job, it is highly unlikely the temp agency would have any legal liability for giving that worker a poor reference.
This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.