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Private security firm and City are joint employers under Title VII

Private security firm and City are joint employers under Title VII
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Forsythe v. New York City, ___F.Supp. 2d___(S.D.N.Y. April 6, 2009)(registration required), illustrates an important principle of law. Two separate businesses can both be considered employers, for Title VII purposes, of an employee. Here, a pro se plaintiff survived a motion to dismiss the City because it may be a joint employer with a private security firm. As the court states:

A joint employer relationship exists "where there is sufficient evidence that [one entity] had immediate control over another company's employees." N.L.R.B. v. Solid Waste Services, Inc., 38 F. 3d 93, 94 (2d Cir. 1994). In analyzing whether two entities are "joint employers" of a plaintiff, courts consider commonality of hiring, firing, discipline, pay insurance, records, supervision and participation in the collective bargaining process.

Clearly, plaintiff has alleged enough to preclude dismissal of his complaint under a joint employer theory. Reading generously, he alleges that a City employee forced him to be transferred from one post to another.

While the City argues that such a lateral transfer is not an "adverse employment action" or one that materially affects the "terms and conditions" of plaintiff's employment, the United States Supreme Court has recently indicated that this is not necessarily the case. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

The court can understand why a security guard might find a posting at the New York City Municipal Building to be better or more advantageous than one at a DoT facility in Queens.
This issue would have to be explored more fully.

Mitchell H. Rubinstein

NYPPL Comments: What may prove to be relevant in the Forsythe case is the fact that Title VII places limitations on the amount of damages that may be awarded to a prevailing party [for Title VII's statutory limits on employer liability see 42 U.S.C. §1981a(b)(3)(D)]. Essentially caps are set based on the number of employees in the organization. In Vance v Union Planters Bank Corp., 279 F. 3d 295, [Cert. Denied, 537 U.S. 815], the Circuit Court of Appeals addressed the issue of determining ?the number of employees in the organization? in situations involving a parent/subsidiary or a joint-employer relationship for this purpose.

Another aspect of ?joint employer? situations may involve representation for collective bargaining purposes.

Local 200, SEIU petitioned PERB seeking to represent certain titles [teacher aids, school secretaries, etc.] that it claimed were employees of the Berkshire Farm Union Free School District.

The District opposed this, contending that it was a "joint employer" of the incumbents of the titles the union sought to represent. It said that the other employer, the Berkshire Farm Center, was a private employer and thus PERB lacked jurisdiction in the matter.

Earlier the National Labor Relations Board [NLRB] had certified Local 74, SEIU, as the representative of the Farm Center's employees, including those in the titles involved before PERB, but Local 74 later disclaimed any interest in representing the unit. Local 200 then attempted to have the NLRB certify it as the representative of the Farm titles involved.
The Director of Representation ruled that since the employments involved are "not substantially or unequivocally public,? PERB has no jurisdiction over the employees [Local 200] has petitioned to represent and the petition must be ... dismissed" [23 PERB 4035].

Other ?joint public-private employer? situations have raised other issues such as entitlement to be paid overtime [Nemani v United Health Services, Inc., 170 AD2d 782] and FMLA benefits [the primary employer is responsible for satisfying basic FMLA requirements].

In addition, an ?extra service? employment situation could be a factor. An ?extra service situation arises when an individual, typically working full time for one public appointing authority, is simultaneously employed by the same or another public appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

Full post as published by New York Public Personnel Law on May 11, 2009 (boomark / email).