Sexual Harassment Complaints Filed Against Fast Food Chain Could Raise “Joint Employer” Issues

franchiseEmployment anti-discrimination statutes, such as the New York City Human Rights Law or Title VII of the Civil Rights Act of 1964, allow workers to assert claims against their employers for certain unlawful actions. Determining an employee-employer relationship, however, is not always easy. In situations in which more than one business might play a role in a worker’s employment, courts have developed the concept of a “joint employer.” A recent series of sexual harassment complaints against a major restaurant chain could require a joint employer analysis.

Discrimination in employment on the basis of sex is prohibited under city, state, and federal laws. The definition of “sex discrimination” has expanded over the years, through both court decisions and legislation, to include practices like sexual harassment and pregnancy discrimination. In a typical sexual harassment claim, a plaintiff must demonstrate that an employer is either directly liable due to actions against the plaintiff by a manager or supervisor, or liable for failing to address harassment by a co-worker of the plaintiff, about which it knew or should have known. Before that analysis even begins, however, a plaintiff must establish that an employment relationship exists.

A worker may receive a paycheck from one company but work at a different company’s site because of a contract between the two companies. When one company handles payroll, but another company directs the employee’s daily work, which one is the “employer?” Another common example of this problem involves franchised businesses. An individual might appear to be employed by a company that operates a national chain of stores or restaurants, but their employer is actually a local company operating under a franchise agreement with a larger company. The local business, or franchisee, would be the employer on paper, but the larger company, or franchisor, might still exercise considerable control over the conditions of employment.

The “joint employer” doctrine allows courts and regulatory agencies to treat multiple companies as a single employer for the purpose of enforcing employment laws. The National Labor Relations Board (NLRB) recently revised its definition of a joint employer in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). While the decision does not directly apply to Title VII claims, it provides a useful example of a joint employer analysis. The NLRB established a two-part test, which states that “two or more entities are joint employers of a single work force if”:

1. “They are both employers within the meaning of the common law,” and
2. “They share or codetermine” issues relating to “the essential terms and conditions of employment.” Id. at 15.

In October 2016, 15 employees of a major fast-food chain filed sexual harassment complaints with the Equal Employment Opportunity Commission (EEOC). The complainants are located in eight states, including New York. Fourteen of the complaints allege harassment in locations operated by franchisees, but all 15 complaints name the national franchisor as a joint employer.

The complaints allege a wide range of conduct by supervisors and managers, from inappropriate comments to nonconsensual touching. They reportedly cite the franchisor’s “zero tolerance” policy on sexual harassment as part of the argument for holding it liable as a joint employer. The EEOC must make a determination before any of the complainants may file a lawsuit.

The experienced and skilled sexual harassment lawyers at Phillips & Associates advocate for the rights of job seekers, employees, and former employees in New York City in claims of sexual harassment and other unlawful practices. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.

More Blog Posts:

Server Alleges Sexual Harassment in New York Federal Lawsuit Against Restaurant, New York Employment Attorney Blog, May 31, 2017

Lawsuit Alleges Pregnancy Discrimination, Sexual Harassment Against Media Company, New York Employment Attorney Blog, May 10, 2017

New York City Bus Drivers Allege Sexual Harassment by Male Supervisor, New York Employment Attorney Blog, May 3, 2017

Photo credit: Nick Youngson [CC BY-SA 3.0], via Creative Commons Images.

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