©2026 Seyfarth Shaw LLP Developments in Equal Pay Litigation 2026 | 81 3. Identifying The “Employer” Under The EPA One issue that is frequently litigated in EPA lawsuits is whether one or more entities can be considered the “employer” of the plaintiff. This hinges on the legal definition of “employer,” which differs under the EPA versus Title VII. Under Title VII, subject to some enumerated exceptions, an “employer” means “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.”641 The EPA uses the broader definition found in the FLSA, which defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .”642 An “employee” is defined as “any individual employed by an employer,”643 and the term “employ” means “to suffer or permit to work.”644 Together, those definitions have been called “the broadest definition . . . ever included in any one act.”645 Identifying the proper employer(s) often depends on how joint employment is assessed. Courts interpreting the FLSA’s definition have focused on the “economic realities” of the purported employment relationship. The “economic realities” inquiry, in turn, focuses on a number of factors related to control over the employee, including whether the alleged employer: (1) had the power to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.646 Deciding that issue can be quite complex and often gives rise to significant substantive litigation apart from the actual merits of a lawsuit. For example, in Moore v. Baker,647 the court allowed a complaint against alleged joint-employers to proceed, holding that the fact-intensive nature of the joint-employer inquiry required discovery and further factual development. In that case, a Director of Student Support Services at a community college sued her employer(s) for reassigning her to a new position as Adult Education Counselor/Student Services Coach.648 Plaintiff alleged that the college and the Board of Trustees should be treated as a single employer because the Board of Trustees has the authority to make rules and regulations for the college, including regarding qualifications for faculty and establishing and maintaining an annual salary schedule.649 Plaintiff also alleged that the college president was directly responsible to the Chancellor and the Board of Trustees for the college’s day-to-day operations and serves at the pleasure of the Board of Trustees.650 While acknowledging the term “employer” is defined differently under Title VII and the EPA, the court found those allegations would suffice at the motion to dismiss stage under both statutes, holding that joint-employment was a fact-specific inquiry best left to summary judgment.651 641 42 U.S.C. § 2000e(b). 642 29 U.S.C. § 203(d). 643 Id. § 203(e)(1). 644 Id. § 203(g). 645 U.S. v. Rosenwasser, 323 U.S. 360, 363 n.3 (1945). 646 See, e.g., Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132, 139 (2d. Cir. 1999). 647 Moore v. Baker, No. 18-cv-311-KD-B, 2019 WL 1374674 (S.D. Ala. Mar. 8, 2019). 648 Id. at *1. The community college subsequently hired a new director of student support services at a higher salary than plaintiff had been paid. Id. at *2. 649 Moore, 2019 WL 1374674, at *6. 650 Id. 651 Id. at *7. Similarly, in Jafri v. Signal Funding LLC, No. 19-cv-645, 2019 WL 4824883 (N.D. Ill. Oct. 1, 2019), the Chief Operating Officer of a financial company brought a claim under the federal and Illinois Equal Pay Acts, alleging she was paid less than five of her male subordinates. Id. at *1. The complaint was brought against plaintiff’s employer entity, as well as affiliated entities and the founder and Managing Partner of the corporate parent of those affiliated entities. Id. The employer argued that the complaint failed to allege that the affiliated entities had any control over plaintiff’s pay. Id. at *4. However, the district court held that, “the allegation that she was employed by these entities is sufficient to plausibly allege that the entities had some control over her pay. This is particularly so when one individual—defendant [founder]—owns all three entities and is alleged to have directed [plaintiff] to move from Illinois to Florida in order to be able to more effectively work for all three entities.” Id. The district court therefore allowed the case to proceed to discovery in order to determine, among other things, whether each of the defendants had the alleged control over plaintiff’s compensation. Id.
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