2nd Circuit: Common Law Joint Employer Standard Applies to Title VII

Applies to:           All Employers with CT, NY, and VT Employees

Effective:             March 7, 2022

For the first time, in Felder v. United States Tennis Association, the Second Circuit Court of Appeals identified a specific test for determining who is considered a “joint employer” under Title VII of the Civil Rights Act of 1964. The court aligned with other Circuit Courts stating that a joint employer relationship exists when two or more entities, according to common law principles, share significant control of the same employee, such as control over an employee’s hiring, firing, training, promotion, discipline, supervision, including handling of records, insurance, and payroll. Because exercise of control is the guiding indicator, factors indicating a joint-employment relationship may vary depending on the case. However, all aspects of the relationship must be assessed and weighed with no one factor being decisive.

There, an African-American security guard was assigned to work at a tennis tournament who refused to issue him security credentials; he alleged discrimination against the tournament association. The court stated that 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. More specifically, an employee must allege that the entity would have exercised significant control over the terms and conditions of his employment.

Action Items

1. Review vendor contracts and joint employer relationships with legal counsel.
2. Subscribers can call our HR Hotline at (833) 268-5531 for further assistance.