Applying “Joint Employer” Doctrine, Court Denies Motion to Dismiss National Origin Discrimination Claims

In Perez v. RJR Maintenance Group Inc., No. 652938/2023, 2024 WL 1532761 (N.Y. Sup Ct, New York County Apr. 5, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of discrimination asserted under the New York State and City Human Rights Laws.

In reaching its conclusion, the court employed the “joint employer” doctrine.

From the decision:

In analyzing whether a plaintiff has stated a cause of action for violations of the New York State and New York City Human Rights Laws based on discrimination, the First Department applies a liberal pleading standard wherein the plaintiff must only give defendants “ ‘fair notice’ of the nature of the claim and its grounds” (Vig v New York Hairspray Co., L.P., 67 AD3d 140 [1st Dept 2009] quoting Swierkiewicz v Sorema N.A., 534 US 506 [2002]). Here, plaintiff plead that defendants were joint employers.

“Under this doctrine, an employee may be formally employed by one entity but assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity” (see Cannizzaro v City of New York, 82 Misc3d 563 [Sup Ct, New York County 2023] citing Arcuelo v On-Site Sales & Mktg., LLC, F3d 193 [2d Cir 2005]). When determining if a defendant is actually a joint employer, courts analyze the party under the “immediate control” test which looks at several relevant factors like “hiring, firing, discipline, pay, insurance, records, and supervision,” but the most important factor is the “right to control the means and manner of the worker’s performance” (see Brankov v Hazzard, 142 AD3d 445 [1st Dept 2016]). Here, plaintiff plead that RJR hired plaintiff as a housekeeper to work at Bellevue and that RJR and that H+H were joint employers. She further averred that H+H agreed to directly hire the plaintiff, that H+H permitted plaintiff to travel to her home country of Colombia, and that H+H was the one to call her while she was away to tell her to come back to Bellevue and sign her full-time contract. Given the fact intensive nature of determining whether someone is a joint employer, at this stage defendants’ motions should be denied (see Cannizzaro, 82 Misc3d 563). Whether plaintiff can sustain its burden on summary judgment is not relevant at this juncture.

The court concluded that “the timing of plaintiff’s termination just after returning from permitted leave to her home country permits the inference along with the other plead facts that she was discriminated against based on her national origin.”

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