Surprise! Your company could be liable under Title VII as a joint employer.

It’s late Sunday night. I just finished the Walking Dead mid-season finale (no spoilers) and I’m catching up on the latest news about Carson Wentz’s knee.

And somehow I managed to pull myself out of the fetal position to type this post.

I’m trying to remember the last time that I did a “joint employer” post. It’s been a while for sure. But, since I just finished reading this NY federal court’s opinion (here), which involved sexual harassment, retaliation, and joint-employer issues, that’s what you’re getting today.

People often think of “joint employer” in connection with labor-relations matters. But, it’s broader. It can apply in the wage and hour context.

And, to discrimination claims as well.

For example, Salvat v. Construction Resources Corporation involves a female plaintiff who worked on a construction site as an ironworker. On this job were a general contractor, a subcontractor, and another company that served as the construction manager. The plaintiff named all three companies defendants after she claims she was fired for complaining about sexual harassment in violation of Title VII.

Well, how can that be? Allow me to explain the theory.

Only an “employer” can be held liable under Title VII. The New York federal court noted that “employer” is “defined functionally,” and includes “persons who are not employers in conventional terms.” Rather, as long as a company exercises some control over the plaintiff, then that company can be an “employer.”

According to her amended complaint, the plaintiff alleged that the construction manager contracted to supervise the subcontractor and its employees. Plus, the contract allegedly provided that the construction manager would play a role in directing how work would be performed on the job site. Further, the plaintiff alleged that the construction manager called a meeting in response to the plaintiff’s complaints of sexual harassment. This meeting allegedly resulted in an agreement to fire the alleged harasser. However, the harasser was not fired, but the plaintiff was.

The foregoing facts checked a number of boxes which tend to indicate a joint-employer relationship; namely,  (1) ability to hire and fire, (2) power to discipline, and (3) direct supervision of employees. (Other factors include setting work hours and control over labor relations). Consequently, when the construction manager moved to dismiss the plaintiff’s complaint, the NY federal court denied the motion.

If you’re in the construction industry, you should already know this stuff. But, more generally, if your company exercises the same sort of control over individuals who may not necessarily be on your payroll, well, here’s your wake up call.