In Felder v. United States Tennis Association, 2022 WL 663145 (2d Cir. March 7, 2022), the Second Circuit considered the question of what a Title VII plaintiff must adequately allege to plead the existence of an employer-employee relationship pursuant to the “joint employer” doctrine.
The alleged facts, in sum/brief: a security company (AJ Security) hired plaintiff as a security guard and assigned him to work at the 2016 U.S. Open. In August 2016, plaintiff’s AJ Security supervisor sent him to pick up his security credentials from the USTA. Plaintiff filed this lawsuit, alleging that the USTA denied his credentials because of his race and in retaliation for a lawsuit that he had previously filed in 2012 against CSC Security Services (“CSC”), another firm providing security to the USTA.
The court explained that while the existence of a “requisite employer-employee relationship” is “a cornerstone of an adequately pled Title VII complaint”, “in alleging an employer-employee relationship, an employee is not squarely limited to claims against his or her formal employer.”
Building on this premise, the court explained:
Pursuant to the “joint employer doctrine,” an employee may assert Title VII liability against a “constructive employer”—an entity that shares in controlling the terms and conditions of a plaintiff’s employment. See Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005). Most commonly, the “joint employer doctrine” applies “where the plaintiff’s employment is subcontracted by one employer to another, formally distinct, entity.” Gulino, 460 F.3d at 378. Although this Court has not previously identified a specific test for determining what renders an entity a “joint employer” in a Title VII case, today we join our sister Circuits in concluding that non-exhaustive factors drawn from the common law of agency, including control over an employee’s hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll, are relevant to this inquiry.
Applying the law to the facts, the court held:
The parties do not dispute that AJ Security was Felder’s formal employer. But Felder argues that his complaint adequately alleges that the USTA was his joint employer and therefore subject to Title VII’s prohibitions on discrimination and retaliation. We disagree. An entity can only be liable under Title VII as a joint employer for rejecting the temporary assignment of a contractor’s employee if the entity would have been the employee’s joint employer had it accepted his assignment. To plausibly allege that the parties intended to enter into a joint-employment relationship, then, a plaintiff must allege that the entity would have exercised significant control over the terms and conditions of his employment by, for example, training, supervising, and issuing his paychecks. Because Felder’s complaint is devoid of any such allegations, his Title VII [discrimination] claim[] must fail.
While the court thus affirmed the dismissal of plaintiff’s discrimination claim, it vacated the lower court’s dismissal of plaintiff’s Title VII retaliation claim, since plaintiff “held that plaintiff did plausibly allege “that the USTA denied his credentials in retaliation for the lawsuit he filed against his former employer, CSC, and has further represented that he can plead additional indicia of a joint employer relationship now that he is represented by counsel.”