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Wednesday, August 17, 2016

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws


Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws
Brankov v Hazzard, 2016 NY Slip Op 05778, Appellate Division, First Department

The  decision of the Appellate Division in Brankov, which involved an employment in the private sector, concerned whether “an ostensible non-employer is actually a "joint employer" for purposes of employment discrimination claims under the State and City Human Rights Laws (HRL).” Thus the ruling may be instructive in determining the employer-employee relationship for the purposes of HRLs in situations where a public officer or employee, alleging unlawful discrimination, initiates an administrative or judicial complaint under state, local and, or federal laws claimng two or more public sector employers are liable for the alleged acts of unlawful discrimination.

Although the majority of employments in the public service involve the appointment of an individual to a position under the jurisdiction of a single appointing authority, there are a number of other types of employments that may be made depending of the circumstances, the most common being a “dual employment” and a “joint employment.”*

Dual employments typically involves a single individual serving in two different positions, each under the jurisdiction of different appointing authorities and generally require the knowledge and approval of the appointing authorities involved.**

In contrast, a joint employment is effected when two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two [or more] appointing authorities typically share the personnel service costs involved.

Other types of employments in the public service include, but are not limited to:  

1. A “special employee” in the service of two or more employers pursuant to a shared services agreement,

2. A “shared employment” in which two or more individuals are employed part-time by a single appointing authority and “share” a single position and

3. An “extra service employee” where an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Appellate Division described Dragica Branko’s employee status as follows:

“In this action "Company A" hired Brankov, paid her salary and bonuses, controlled where she was assigned to work, and placed her at "Company B" and later transferred her to other locations. A "Company A" employee supervised Branko on a day-to-day basis. "Company B" had no say in the end of Branko's employment with "Company A" years after she had been transferred to another location. The record plainly indicates that "Company A", and not "Company B," ultimately controlled Branko's employment.”

Explaining that Federal District Courts have typically applied the "immediate control" test in determining the appropriate “defendant-employer” in such situations, the Appellate Division said that under the "immediate control" formulation, 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," and particularly the defendant's control "over the employee in setting the terms and conditions of the employee's work."

"Relevant factors" in this analysis "include commonality of hiring, firing, discipline, pay, insurance, records, and supervision." Of these factors, "the extent of the employer's right to control the means and manner of the worker's performance is the most important factor."

In Brankov, the Appellate Division held that “[v]iewed in the light most favorable to [Brankov], the record fails to demonstrate that ["Company B"] had the requisite "immediate control" over the terms and conditions of her employment to be subject to liability under the New York State and New York City Human Rights Law as a "joint employer."

Accordingly, said the court, Supreme Court correctly held that "Company B" was not Brankov’s joint employer, and correctly dismissed her claims against "Company B" and Hazzard as those claims rested on her theory of joint employment.

* These designations involve the "nature of the individual's performance of duties obligations" rather than the “nature of a public officer’s or employee’s status" in the position such as a permanent, temporary, contingent permanent, full-time, part-time, seasonal, trainee, per diem or substitute appointee or as an individual elected to a position in the public service. An independent contractor serving with a State, a political subdivision of the State, a public authority or other governmental entity is not a “public employee."  

** Another consideration with respect to dual employments concerns the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation? As the Attorney General advised in an informal opinion: In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17].

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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