Sexual Harassment Plaintiff Sufficiently Alleges Joint Employment and Failure to Respond to Plaintiff’s Complaints

In MARLINE SALVAT, Plaintiff, v. CONSTRUCTION RESOURCES CORP., EMPIRE OUTLET BUILDERS, LLC, L.P. CIMINELLI, INC., and ANTHONY SANGO, Defendants., 2017 WL 6210849, at *1 (S.D.N.Y., 2017), a sexual harassment case, the court denied the defendant’s motion to dismiss, and held that plaintiff pleaded enough to sufficiently allege that that entity was her “joint employer”, and that it failed to respond adequately to her complaints.

As to the “joint employer” issue, the court outlined the relevant law:

The term “employer” is defined functionally, and includes “persons who are not employers in conventional terms, but who nevertheless control some aspect of an employee’s compensation or terms, conditions, or privileges of employment.” Laurin v. Pokoik, No 02-CV-1938 (LMM), 2004 WL 513999, at *8-9 (S.D.N.Y. Mar. 15, 2004) (quoting EEOC v. Sage Realty Corp., 507 F. Supp. 599, 611 (S.D.N.Y. 1981)) (additional citations omitted). Persons or entities who exercise control over an employee are potentially liable as “joint employers.” In assessing whether a person or business is a joint employer, the Court applies a multi-factor test: “[i]n determining immediate control, we weigh whether the alleged joint employer (1) did the hiring and firing; (2) directly administered any disciplinary procedures; (3) maintained records of hours, handled the payroll, or provided insurance; (4) directly supervised the employees; or (5) participated in the collective bargaining process.” AT&T v. NLRB, 67 F.3d 446, 451–52 (2d Cir. 1995) (quoting Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 138 (2d Cir. 1985)). Whether a person or business qualifies as a “joint employer” is fact-intensive and ordinarily not appropriately resolved at the pleading stage.

Applying the law, the court held:

Salvat has adequately, albeit barely, alleged that LPC was her employer pursuant to the “joint employer” doctrine. According to the Amended Complaint and the Subcontractor Agreement attached thereto, LPC had the authority to supervise CRC and its employees, including Salvat: “[a]ll work of [CRC’s] employees/laborers [was to] be performed pursuant to the instructions of [Empire’s] jobsite supervisor/representative including [LPC], who shall inform [CRC’s] foreman/lead man, on a daily basis, as to the location of the work and the tasks to be performed.” Subcontractor Agmt § 6(a). Additionally, the Amended Complaint alleges that LPC’s site superintendent, Mr. Ferris, called a meeting in response to Salvat’s complaints, which resulted in an agreement to fire Sango and to fix the broken porta-john. Am. Compl. ¶¶ 39, 49; see also Am. Compl. Ex. C at 1 (Empire incident report describing meeting called by Ferris). Salvat also alleges that a more senior LPC superintendent, Randell Babbitt, was involved in a meeting with Sango. Am. Compl. ¶¶ 51-52. Mr. Ferris was further involved in a follow-up meeting with Salvat, her union, and CRC, and Empire’s record of that meeting can be read to suggest that Salvat was an employee of both Empire and LPC. Am. Compl. Ex. C at 2 (stating, in response to Salvat’s complaint that “The [women’s bathroom] must be secured with appropriate window vents and a functioning lock. Mr. Stango [sic] must be removed from this job. It is of the utmost importance to [Empire] and [LPC] that all their employees male and female are safe and secure in their work environment.”). These allegations are relevant to three of the joint-employer factors: LPC’s control over hiring and firing (factor one), disciplinary procedures (factor two), and direct supervision of employees (factor four).

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