Gender/Pregnancy Discrimination Plaintiff Overcomes Motion to Dismiss Based on “Joint Employer” Doctrine

In Griffith v. Coney Food Corp. d/b/a Checkers et al, 2020 WL 4748452 (E.D.N.Y. August 17, 2020) – a gender/pregnancy discrimination case – the court, inter alia, held that plaintiff alleged sufficient facts that defendant (Checkers) is her “joint employer” under the New York State and City Human Rights Laws.

The court summarized the contours of the “joint employer” doctrine as follows:

The joint employer doctrine allows an employee who is “formally employed by one entity … to impose liability on another” based on “the relationship between two possible employers.” Knight v. State Univ. of New York at Stony Brook, 880 F.3d 636, 642 (2d. Cir 2018). Two employers are “joint” when they are “separate legal entities, but … handle certain aspects of their employer-employee relationship jointly.” Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005). In determining joint employer status, courts look to whether the defendant exercised “immediate control” over the other company’s employees. See, e.g., Fowler v. Scores Holding Co., Inc., 677 F. Supp. 2d 673, 681 (S.D.N.Y. 2009) (applying “immediate control” test to Title VII claim); Brankov v. Hazzard, 142 A.D.3d 445, 445-46 (1st Dept. 2016) (applying “immediate control” test to NYCHRL claim); see also Kology v. My Space NYC Corp., 177 F. Supp. 3d 778, 782 (E.D.N.Y. 2016) (“The analysis used to determine whether an entity is an individual’s employer pursuant to the NYSHRL and NYCHRL is substantially the same as that used under Title VII.”). Similar factors are assessed to determine “immediate control” under both federal and state discrimination laws, including “commonality of hiring, firing, discipline, pay, insurance, records, and supervision.” See NLRB v. Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994); Brakov, 142 A.D.3d at 446 (enumerating the same relevant factors).4 Finally, “[t]he existence of a joint employer relationship is essentially a factual issue that cannot be resolved based on the complaint alone.”

Applying the law to the facts, the court explained:

Checkers argues that Griffith has failed to allege that Checkers had control over hiring and firing at Coney Food or that Checkers had sufficient control over Coney Food’s recordkeeping, payroll, and insurance.5 (Mem. at 9.) The court disagrees; in fact, the amended complaint alleges numerous facts sufficient to support an inference of joint employer status. The amended complaint alleges, inter alia, that Checkers controls the appointment of Coney Food management (Am. Compl. ¶ 23); oversees Coney Food’s point of sale system (id. ¶ 24); and imposes various operational restrictions on Coney Food, “including but not limited to, restaurant appearance and layout requirements, operations standards, management standards, use of suppliers, and advertising standards,” (id. ¶ 26). It further alleges that Griffith’s work is integral to Checkers’s operations because Checkers “runs a fast-food business dependent on its franchise, and corporate-owned stores, selling and delivering food” (id. ¶ 29); indeed, Checkers considers it “extremely important” that its franchises and executives “operate as one brand” and directly supervises the opening of new Checkers franchises, including Coney Food. (Id. ¶¶ 25, 30.) The amended complaint also alleges that Checkers exercises control over Coney Food’s recordkeeping. (See Id. ¶¶ 32-33.) These allegations are sufficient to defeat Checkers’s motion at this stage of the litigation, especially in light of the fundamental factual nature of the joint employer inquiry and the liberal construction the court must afford Griffith’s NYSHRL and NYCHRL claims.

Based on this, the court concluded – while noting that “Checkers will be free to raise these arguments again on a complete record on summary judgment” – that it “cannot say that, as matter of law, Checkers was not Griffith’s joint employer for the purposes of her NYSHRL and NYCHRL claims.”

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