In Brankov v. Hazzard, 2016 NY Slip Op 05778 (App. Div. 1st Dept. Aug. 11, 2016), an employment discrimination case, the court discussed and applied the “joint employer” doctrine to plaintiff’s claims under the New York State and City Human Rights Laws. It affirmed the lower court’s dismissal of plaintiff’s claims against two defendants, because the record failed to show that they satisfied the “joint employer” test.
The court summarized the law as follows:
In determining whether an ostensible non employer is actually a “joint employer” for purposes of employment discrimination claims under the State and City Human Rights Laws (HRLs), numerous Federal District Courts have applied the “immediate control” test (see e.g. Tate v Rocketball, Ltd ., 45 F Supp 3d 268, 273 [ED NY 2014]; Haight v NYU Langone Med. Ctr., Inc. , 2014 WL 2933190, *11, 2014 US Dist LEXIS 88117, *28-29 [SD NY 2014]; Daniel v T & M Protection Resources, Inc ., 992 F Supp 2d 302, 313 [SD NY 2014])[FN1]. Under the “immediate control” formulation, a “joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the other company’s employees,” and particularly the defendant’s control “over the employee in setting the terms and conditions of the employee’s work.” “Relevant factors” in this exercise “include commonality of hiring, firing, discipline, pay, insurance, records, and supervision.” Of these factors, “the extent of the employer’s right to control the means and manner of the worker’s performance is the most important factor.” If such control is established, other factors “are then of marginal importance”.
Applying the law, the court held:
Viewed in the light most favorable to plaintiff, the record fails to demonstrate that defendant WestLB had the requisite “immediate control” over the terms and conditions of plaintiff’s employment to be subject to liability under the New York State and New York City HRLs as a “joint employer” (see e.g. id .; Daniel v T & M Protection Resources, Inc. , 992 F Supp 2d at 313. Defendant Euro Lloyd hired plaintiff, paid her salary and bonuses, controlled where she was assigned to work, and placed her at WestLB and later transferred her to other locations. A Euro Lloyd employee supervised plaintiff on a day to day basis. WestLB had no say in the end of plaintiff’s employment with Euro Lloyd years after she had been transferred to another location. The record plainly indicates that Euro Lloyd, and not WestLB, ultimately controlled plaintiff’s employment. Accordingly, the motion court correctly held that WestLB was not plaintiff’s joint employer, and correctly dismissed plaintiff’s claims against WestLB and Hazzard under the State and City HRLs, as those claims rested on plaintiff’s theory of joint employment.