Temporary Employee Can Sue For Retaliatory Discharge

On September 13, 2006, under threat of subpoena, Carrie Hester gave testimony in the workers compensation case of another employee at Gilster Mary-Lee Corp. The next day, September 14, 2006, Gilster informed Ms. Hester that it would no longer be using her services and that if she wanted other employment she would have to return to Manpower, Inc., the employment agency through which Ms. Hester was placed with Gilster.

Ms. Hester sued Gilster for retaliatory discharge, alleging that she had only been assigned to work at Gilster by Manpower and that Gilster was her real employer. Ms. Hester alleged that while she was assigned to work at Gilster, Gilster set her daily hours, her work schedule, her hourly wage, and her job assignments. Ms. Hester also alleged that while she was assigned to work at Gilster, no one from Manpower supervised her work and that she worked “side-by-side” with regular Gilster employees with no distinction between them and herself or other workers provided by Manpower to Gilster.

Gilster filed a motion to dismiss Ms. Hester’s lawsuit which included an affidavit signed by Gilster's Risk Manager who stated that Ms. Hester was never an employee of Gilster, that Gilster did not pay Ms. Hester, that she was not on Gilster's payroll list, that Gilster did not maintain personnel records for her, and that Ms. Hester was not entitled to pension or other employee benefits through Gilster. Additionally, Gilster’s Risk Manager stated that Manpower paid Ms. Hester for the work she had performed at Gilster and that Gilster did not set her hourly rate but had merely paid a flat fee to Manpower for her services. The trial court granted Gilster’s motion to dismiss finding that Ms. Hester was not employed by Gilster and that Gilster therefore could not have discharged her. Ms. Hester appealed.

The appellate court framed the issue as “. . . whether a cause of action for retaliatory discharge extends to a borrowed employee whose employment with the borrowing employer is terminated for testifying in a coworker's workers' compensation claim.” Resolving the issue in Ms. Hester’s favor, the court held that, as a matter of first impression, “. . . a borrowed employee may maintain a cause of action for retaliatory discharge against a borrowing employer based upon an allegation that the employee has been discharged for engaging in activities protected by the Workers' Compensation Act.”

Hester v. Gilster-Mary Lee Corp., No. 5-07-0283 (Ill. App. Ct. Dec. 18, 2008).