In Lazarine v. Allied Universal Event Services, No. 153143/2023, 2024 WL 3312472 (N.Y. Sup Ct, New York County July 01, 2024), the court granted defendant Columbia University School of Nursing’s motion to dismiss plaintiff’s employment discrimination claims against it.
In sum, plaintiff worked as a security guard for defendant Allied Universal and was assigned to work a Columbia property in the Bronx, where she allegedly suffered employment discrimination, including and sexual harassment.
This decision is instructive as to how courts apply the “joint employer” and “single employer” doctrines under the New York State and City Human Rights Laws.
From the decision:
In determining whether a non-employer may be considered a joint employer, courts apply the “immediate control” test. (See Brankov v Hazzard, 142 AD3d 445, 446 [1st Dept 2016].) Under this test, “a joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the other company’s employees,” in particular “control over the [particular] employee in setting the terms and conditions of [their] work.” (Id. [internal citations omitted].) Relevant factors in the analysis include “commonality [in] hiring, firing, discipline, pay, insurance, records, and supervision” of the employee (Id.) As the Second Circuit framed the question: did the purported joint employer (1) hire or fire the plaintiff-employee, (2) directly administer any disciplinary procedures, (3) maintain records of hours, handle payroll or provide insurance, (4) directly supervise the employee, or (5) participate in the collective bargaining process? (SEIULocal 32BJv NLRB, 647 F3d 435, 443 [2d Cir 2011].) Of these, “the extent of the employer’s right to control the means and manner of the worker’s performance is the most important factor.” (Brankov, 142 AD3d at 446.)
Though plaintiff asserts that Columbia exercised control over her employment, she has failed to plead facts demonstrating the presence of any of these factors. She does not allege that Columbia hired her or had the power to terminate her, let alone did so. Nor does she allege Columbia directly supervised her work. The closest she comes on this front is merely alleging that one of its employees asked her to wear a fishnet while on duty if she was not going to put her hair in a bow and that the university considered her uniform to be “too tight” (though apparently, from the complaint, they did nothing about said belief). Either way, these allegations do not demonstrate Columbia supervised her work or dictated the terms and conditions of plaintiff’s employment. Elsewhere, plaintiff asserts that Allied Universal “took its directives from Columbia” and that Columbia “had an obvious control over management and staff of [Allied Universal]” but such assertions are made without identifying a specific directive or detailing any facts that would indicate the presence of said control and management. Put differently, the complaint lacks facts that suggest Columbia, as plaintiff put it, “exercised a level of control over her such as daily activities, specific attire, schedule, [and] physical station on its property.”
In Stokely v UMGRecs., Inc. (144 AD3d 575, 575 [1st Dept 2016]), the First Department found that the plaintiff had not adequately alleged a joint employer relationship since his only allegations of said relationship consisted of bare legal conclusions. Like here, the plaintiff had only alleged that “[defendants] operate as part of a single integrated enterprise that employed or jointly employed plaintiff at all relevant times” and “defendants … share a common business purpose and ownership, maintain common control, oversight and direction … [non-employing] defendant has substantial control over plaintiff’s working conditions.” (See Toledo v Unibud Restoration Corp., 2022 WK 171198 at * 2 [SDNY 2022] [finding that the plaintiff failed to allege a joint employer relationship where she “never alleges or describes how (defendant) engaged in methods of control over plaintiff” such as her daily activities, her hiring/firing, and/or dictating the hours she worked].)Nor has plaintiff alleged a single employer relationship between Allied Universal and Columbia. The single employer doctrine applies where two entities are so intertwined that they should be treated as a single employer-for example, a parent company and its subsidiary. (See Batilo v Mary Manning Walsh Nursing Home Co., Inc., 140 AD3d 637, 638 [1st Dept 2016].) Here, plaintiff has not alleged that Allied Universal and Columbia share (1) common management, (2) common ownership, (3), centralized control of labor operations, or (4) the operations of Allied Universal and Columbia are interrelated. Since Columbia cannot be considered plaintiff’s employer under either a joint or single-employer relationship, Columbia is entitled to dismissal of the complaint against it.
Accordingly, the court granted Columbia’s motion for dismissal pursuant to CPLR 3211(a)(7).