In Weiss v. Premier Technologies, 2023 WL 3314691 (W.D.N.Y. May 9, 2023), the court held that plaintiff sufficiently alleged that AT&T was plaintiff’s “joint employer.” This decision provides helpful guidance regarding the application of this doctrine.
From the decision:
“The standard for whether an entity is a joint employer for Title VII and [NYHRL] purposes is ‘functional’ and requires the Court to ‘look at commonality of hiring, firing, discipline, pay insurance, records, and supervision.’ ” Gonzalez v. City of New York, 2015 WL 9450599 at *3, 2015 U.S. Dist. LEXIS 170605 at *7 (E.D.N.Y. 2015). Thus, in assessing whether an entity is a joint employer, the Court considers multiple factors, including: “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.” Salvat v. Constr. Res. Corp., 2017 WL 6210849 at *2, 2017 U.S. Dist. LEXIS 201831 at *6 (S.D.N.Y. 2017)(quoting AT&T v. NLRB, 67 F.3d 446, 452-52 (2d Cir. 1995)).
The question of joint employment “is fact-intensive and ordinarily not appropriately resolved at the pleading stage.” Salvat, 2017 WL 6210849 at *2, 2017 U.S. Dist. LEXIS 201831 at *6. “However, simply asserting in a conclusory way than an entity has control over conditions of employment is insufficient; a plaintiff must make factual allegations showing such control.” Gonzalez, 2015 WL 9450599 at *3, 2015 U.S. Dist. LEXIS 170605 at *7.
Here, plaintiff alleges that AT&T “holds itself out as the operator” of [Premier’s] businesses and stores,” with AT&T’s logo and name prominently displayed on Premier’s website, in its social media accounts, on its store signage, and even on its employees’ uniforms. Premier uses the business name, “AT&T Premier Technologies” on its LinkedIn profile and elsewhere online, and its employee email accounts use the domain “att-premium.com.” (Dkt. #16 at ¶7). In fact, plaintiff alleges that a number of Premier’s stores display only the AT&T name on their exterior, with no reference to Premier or any other company. (Dkt. #16 at ¶8). Plaintiff also alleges that when Premier advertises open positions, both the titles and locations reference AT&T alone, such as “AT&T Sales Consultant,” with a work location at “AT&T Elmira Showroom,” etc., and explicitly seek applicants to “join a dynamic AT&T wireless company.” (Dkt. #16 at ¶9).
Plaintiff also avers that Premier’s business operations and employees are directly supervised by AT&T, and that an AT&T regional manager visited plaintiff’s workplace every two weeks to review paperwork and sales logs, assess the store’s compliance with AT&T standards, and to train, monitor, and discuss the performance of individual sales staff members. (Dkt. #16 at ¶¶11, 62). When sales staff had a lead on a particularly important client or contract, they would work with an AT&T business service manager, who would sometimes take over and negotiate with the business lead directly. AT&T business service managers worked with sales staff to write sales call and negotiation scripts, review and modify sales protocols, and provide in-person sales call training and feedback. (Dkt. #16 at ¶63).Assuming the truth of plaintiff’s plausible allegations and granting plaintiff every favorable inference, I find that plaintiff has managed to aver sufficient employee discipline, supervision, and control by AT&T, to plausibly allege that AT&T was her joint employer. See e.g., Salvat, 2017 WL 6210849 at *2, 2017 U.S. Dist. LEXIS 201831 at *6-*7 (allegations that entity supervised and monitored employee performance, was involved in meetings with employees’ direct supervisors, and set workplace standards, “adequately, albeit barely” allege that it was a joint employer). AT&T’s arguments to the contrary comprise “a premature attempt to dispute the factual allegations in the Amended Complaint.” Id., 2017 WL 6210849 at *3, 2017 U.S. Dist. LEXIS 201831 at *8.