78 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP found that there was no reason to combine the branches in this case, because, among other things, the branches were managed independently, had their own sales and profitability goals, each serviced and solicited distinct clients, and there was never any significant overlap in the daily operations.598 Accordingly, for purposes of the EPA—but not Title VII—the plaintiff was limited to just one comparator. 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. Often that determination depends on what test is used to determine joint employment. 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.”599 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 . . . .”600 An “employee” is defined as “any individual employed by an employer,”601 and the term “employ” means “to suffer or permit to work.”602 Together, those definitions have been called “the broadest definition . . . ever included in any one act.”603 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.604 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,605 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.606 The court first noted that the term “employer” is defined differently under Title VII and the EPA.607 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.608 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.609 598 Id. at *6. 599 42 U.S.C. § 2000e(b). 600 29 U.S.C. § 203(d). 601 Id. § 203(e)(1). 602 Id. § 203(g). 603 U.S. v. Rosenwasser, 323 U.S. 360, 363 n.3 (1945). 604 See, e.g., Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132, 139 (2d. Cir. 1999). 605 Moore v. Baker, No. 18-cv-311-KD-B, 2019 WL 1374674 (S.D. Ala. Mar. 8, 2019). 606 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. 607 Id. at *6. Under Title VII, an employer is “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such a person.” Id. (quoting 42 U.S.C. § 2000e(b)). As noted above, the definition of “employer” under the FLSA/EPA is: “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. at *7 (quoting 29 U.S.C. § 203(d)). The court noted that term is defined more broadly under the FLSA/EPA than under the common law. Id. 608 Moore, 2019 WL 1374674, at *6. 609 Id.
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