New York Employment Attorney Blog
Many people in today’s world of work may be employed by one entity, but they may not necessarily work for that entity alone. There may be one or more other entities with the power to exert genuine control over you and the work you do. Working for an employment structure that includes many layers can be tricky, especially if you need to pursue a discrimination, harassment, or retaliation case. These cases can be challenging because, even if you win, your direct employer may lack the financial wherewithal to pay the damages award you recover. To that end, it often makes sense to include a larger entity as your “joint employer.” Successfully pleading these cases can be complex, so you need to make sure you have proper legal representation from a knowledgeable New York City employment retaliation lawyer.
One recent case involved a security guard who worked at various United States Tennis Association (USTA) tournaments, including the U.S. Open in Flushing Meadows. A firm hired the guard to work the 2016 U.S. Open, but his supervisor later discovered that the USTA refused to grant the guard credentials because he had previously made a race discrimination claim (that had settled in 2015.)
The guard sought to sue the USTA for race discrimination and retaliation under federal Title VII. He, however, had a substantial problem: a Title VII discrimination or retaliation claim requires an employer-employee relationship, and the guard’s case had not substantiated that such a relationship existed.
How Federal Law Decides the ‘Joint Employer’ Question
Undeniably, the USTA wasn’t the guard’s direct employer, which meant that the guard needed to prove that the USTA qualified as his “joint employer.” Under federal law, the Second Circuit Court of Appeals said, determining whether or not an entity is a joint employer requires looking at a “non-exhaustive” set of factors. Those criteria included:
- the hiring entity’s right to control the manner and means by which the worker accomplished the job
- the skill required
- whether the “instrumentalities and tools” used for the job belonged to the worker or the hiring entity
- the location of the work
- the duration of the working relationship
- whether the hiring entity has the right to assign the worker additional projects
- the extent of the worker’s discretion over when and how long to work
- the method of payment
- the worker’s role in hiring and paying assistants
- whether the task is part of the regular business of the hiring entity
- the provision of employee benefits
- the tax treatment of the hired party
One of the biggest weaknesses in the guard’s case was that he did not establish that the USTA had control over the hiring and firing decisions the security firm made. An entity that has the power to get you hired or get you fired is an entity that often has the degree of control necessary to qualify it as a joint employer. As this guard’s case demonstrates, the lack of that power can often be a major detriment to a joint employer finding.
How New York State and New York City Determine Who is a ‘Joint Employer’
Under New York State and New York City’s Human Rights Laws, the “immediate control” test decides whether or not an entity is a joint employer. The relevant factors in an immediate control analysis are: “hiring, firing, discipline, pay, insurance, records, and supervision.” The most important thing, though, is the extent of the entity’s “right to control the means and manner of the worker’s performance.”
A fast-food worker’s 2020 discrimination case provides an example of what a successful joint employer argument looks like. The worker alleged that she endured gender and pregnancy discrimination while working at a drive-in restaurant in 2018. Her direct employer was not the restaurant chain but rather a franchisee.
This fast-food worker had presented a case in which the franchisor allegedly controlled the appointment of the franchisee’s management, oversaw the franchisee’s point-of-sale system, and imposed “various operational restrictions” on the franchisee, which included controlling “restaurant appearance and layout requirements, operations standards, management standards, use of suppliers, and advertising standards.”
That was enough to represent a viable argument that the fast-food chain exerted sufficient control over the franchisee to qualify as a joint employer.
A discrimination case may involve many layers. It may not be as straightforward as merely establishing that discrimination occurred and that you suffered harm. Whatever legal argument and techniques are necessary to get you the full and fair recovery the law says you deserve, count on the New York workplace retaliation attorneys at Phillips & Associates to get you there. To find out more, contact us online or at (866) 578-0614 to set up a free and confidential consultation today.