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socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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My son was hired for a large well-known company that uses a

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My son was hired for a large well-known company that uses a staffing service for its professional employees in Jan of this year. He signed a contract with the staffing company that ended on June 30, 2011. He was told by the company he is working for that they were going to renew his contract near the end of his contract term. He tried to contact the staffing agency by phone and email about his new contract to no avail. He has still been working for the company in his same position. He has fees coming out of his pay for both the staffing company of the large corp and the independent staffing co. A few days ago the staffing agency sent a new revised contract for him to sign stating the contract dates of Jan 24, 2011 to Dec. 2011. It is now August. He emailed/called the staffing agent about adding into the new contract a note stating that he would be paid for holidays that the large company he is working for is off so he would always get paid 40 hrs a week as stated in his original contract. He had talked to a previous person at the staffing company and he was told by that employee that they would pay him for holidays at the end of his contract term. The staffing agency refuses to put it in writing saying that the agreement was in his "personal file". When my son asked him why it couldn't be included and to see the contract or why the one he was to sign he was told he couldn't. After several emails the staffing agency is now threatening him with terminating him from the position where he has done an excellent job. The staffing agency is trying to say the contract continuation was "implied" and since he kept working its too bad for him and that he's not operating in "good faith" and violating the terms of his contract. (Though technically he hasn't had once since June 30th it seems to him.) There is no one at the large company that can help him it seems as everyone says its between him and the staffing agency. He doesn't want to lose his job and he's truly not trying to cause trouble. They just won't give him any straight answers. Can you help? What does he need to do. He may go into work tomorrow and find himself fired from a job he has been praised for doing well.

First, under Labor Code 2922, an employer can terminate an employer "at will," unless there is a written contract with a specific termination date. So, if your son's old contract is expired, then the employer can terminate him, at any time, for any reason, or for no reason at all -- and there's nothing your son can do to prevent this.

However, when someone works for a staffing agency, the primary contractor (the organization for which your son actually works) really holds all the cards, because if it wants your son, the staffing agency is not going to fire him, because he is the money stream, and without him, there's no money for the staffing company.

Moreover, unless the staffing company maintains a fixed-term employment contract with your son, then the primary employer can hire your son, regardless of any contractual agreement not to do so. See Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.

In my view, it seems as though the staffing company is shooting itself in the foot.

I can't tell your son what to do, but if he is really a highly sought after employee then the prime contractor will hire him directly (assuming that the staffing company fires him) -- and if not, then I doubt your son will have much difficulty finding new employment.

Hope this helps.

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Customer: replied 6 years ago.

I appreciate your help. I feel he is valuable to the company and they have all told him he doesn't need to worry about getting fired because they need him and he is taking them at their word right now, but sometimes you never know. We assumed as well that the staffing company would have to explain why they were letting him go when all they had was praise for him where he is. Hopefully it was an empty threat and will be resolved tomorrow. If not, I may have another question for you then! Thanks again.