February 01, 2018

Determining the employee status of an individual for the purposes of maintaining a Title VII civil rights action

Determining the employee status of an individual for the purposes of maintaining a Title VII civil rights action
Knight v State University of New York at Stony Brook, USCA, 2nd Circuit, Docket No. 17-54-cv

Anthony Knight, an African-American electrician, sued State University of New York at Stony Brook, alleging that Defendant violated Title VII of the Civil Rights Act of 1964 when it terminated his employment after he reported racist graffiti in a bathroom located at his worksite.

At the trial Stony Brook contended that Knight was not an employee for purposes of Title VII as was an electrician and a member of the International Brotherhood of Electrical Workers, Local 25. Local 25 had an arrangement with Stony Brook under which it referred union electricians to Stony Brook when additional workers were needed to supplement its workforce during large construction projects.

When Knight moved for judgment as a matter of law that he was Stony Brook's employee the United States District Court judge denied Knight’s motion and submitted the issue to the jury. The jury found that Knight was not an employee and thus Stony Brook was not the employer for the purposes of Title II.

On appeal, the Circuit Court of Appeals affirmed the District Court's judgment, holding that Knight was not an employee of Stony Brook.

In response to Knight's argument that the court rather than the jury should have decided his employment status, the Circuit Court explained that whether a jury may determine a plaintiff’s status as an employee presents a question of law, citing Kirsch v. Fleet Street, Ltd., 148 F.3d 149. 

In Kirsch the Circuit Court had rejected the argument that submitting the question to a jury is prejudicial error, the same contention Knight advanced in this action, noting that whether an individual is an employee is “regularly presented to juries that are instructed to return general verdicts, informed by the court’s instructions on the law and given the direction that if they find that the plaintiffs in question were employees . . . they should simply state that they find in favor of the plaintiffs.”*  

The question as to whether an individual is an employee of a defendant in a Title VII action was considered in Community for Creative Non-Violencev. Reid, 490 U.S. 730. Borrowing from the common law of agency, the Supreme Court established a "non-exhaustive list of thirteen factors which guide the determination of employee status," the so-called Reid factors,  set out below:

1. The hiring party’s right to control the manner and means by which the product is accomplished;

2. The skill required;

3. the source of the instrumentalities and tools;

4. the location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional projects to the hired party;

7. The extent of the hired party’s discretion over when and how long to work;

8. The method of payment;

9. The hired party’s role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hiring party is in business;

12. The provision of employee benefits; and

13. The tax treatment of the hired party.

Although Knight had shown that Stony Brook provided some of his tools, it was also shown that the electricians were required to supply their own basic tools. When Knight argued that he was an employee because Stony Brook provided him with benefits, Stony Brook produced evidence that the benefits were in fact paid to the union, which was charged with dispersing the benefits to individual members.

Although Knight presented uncontradicted evidence that he was paid by checks issued by the New York State Comptroller and was treated as an employee for tax purposes, Stony Brook, in turn, presented undisputed evidence that the construction work for which Knight was hired was not its usual business and that the duration of his employment was brief.

The District Court instructed the jury to consider and balance the Reid factors in determining Knight’s employment status. The jury returned a verdict finding that Knight was not an employee of Stony Brook. Finding no error requiring the reversal of the jury’s finding that Knight was not an employee of Stony Brook, the Circuit Court affirmed the judgment of the District Court.

* The Circuit Court also noted that in Baker v. Tex. & Pac. Ry.Co., 359 U.S. 227, "the Supreme Court has held that a jury may decide the employer/employee issue in Federal Employers’ Liability Act cases."

The decision is posted on the Internet at:

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