EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 37 The court also found that the contractor exercised day-to-day supervisory control over the charging party’s employment and determined her location and nature of work because she worked side by side with and performed the same tasks as employees who were directly employed by the contractor. 274 Based on these factors (and aa quick review of the remaining factors under the Fourth Circuit’s test), the court concluded that: “Looking at which – and not just how many – factors favor a finding of joint employment convinces the Court that Defendants, ‘while contracting in good faith with an otherwise independent company, have retained for themselves sufficient control of the terms and conditions of employment’ to be considered [charging party’s] joint employer. ” 275 Many complex employment situations involve successor or related entities, where the corporate structure leaves it unclear which entity makes substantive employment decisions on behalf of employees. For example, in EEOC v. Georgina’s, LLC , 276 the District Court for the Western District of Michigan held that a restaurant could be held liable for Title VII violations that took place at a previous restaurant that held itself out as the successor to the original restaurant. The court concluded that “[New restaurant] had notice of the discrimination charge. It also continued substantially the same business of [old restaurant], using the same Facebook page and providing the same menu items under the ownership/supervision of the same individual. These facts are sufficient to state a claim for successor liability.” 277 Similarly, in EEOC v. 1618 Concepts, Inc. , 278 the U.S. District Court for the Middle District of North Carolina refused to dismiss from a lawsuit two corporate affiliates of the entity that actually employed the charging party. The court noted that the employee handbook had identified 1618 concepts in large font on the front page and had repeatedly referred to that organization throughout, rather than the actual employing entity. 279 The court concluded, that “under the circumstances, the court cannot say that [charging party] should have known, through reasonable effort, that 1618 Downtown, and not 1618 Concepts, was his employer. ” 280 Moreover, the District Court found that the three employer entities named in the lawsuit were closely interrelated; they shared employees, common ownership, common management, and corporate officers. Common ownership and shared management personnel are often deciding factors in determining whether affiliated entities are acting as an integrated enterprise . 281 274 Id. at *8. 275 Id. at *9 (quoting Butler , 793 F.3d at 408). 276 EEOC v. Georgina’s, LLC , No. 1:18-CV-668, 2020 WL 7090215 (W.D. Mich. Dec. 4, 2020). 277 Id. at *3. 278 EEOC v. 1618 Concepts, Inc. , 432 F. Supp. 3d 595 (M.D.N.C. 2020). 279 Id. at 605. 280 Id. 281 See EEOC v. LL Oak Two LLC , No. 19-CV-839-F, 2020 WL 1159390, at *3 (W.D. Okla. Mar. 10, 2020) (holding that a complaint adequately alleged a single employer theory of liability with respect to the defendant entities because, among other things, it alleged that the entities hold themselves out to the public as a single enterprise, that various individuals have duties at more than one of the named defendant entities, and that individual managers that exercised control over employment decisions worked at various of those entities; the court concluded that these allegations “plausibly allege[] a single employer theory of liability”); EEOC v. Vinca Enterprises, Inc. , No. 2:20-CV-4021-NKL, 2020 WL 3621248, at *1 (W.D. Mo. July 2, 2020) (holding that the EEOC had met its burden to establish that the defendants acted as a single employer at the pleading stage because, among other things, the EEOC alleged that the defendants shared their manager and other personnel and shared a business address, and that both entities were owned by the same individuals, who were family members, and that this meant, among other things, that both defendants had knowledge and notice of the charging party’s charge and had an opportunity to attempt reconciliation); EEOC v. Bay Club Fairbanks Ranch, LLC , No. 18-CV-1853 W (AGS), 2020 WL 4336297, at *5 (S.D. Cal. July 28, 2020) (holding that the EEOC’s proposed amendment to its complaint was not futile because, among other things, the new owner entities “share the same corporate headquarters, common managers, and general counsel; that they commonly control all company policies including employment, accounting, payroll, club membership,” and because one entity’s “Company Associate Handbook” applied to all employees of the other entity). The test that is applied to determine joint-employment/integrated enterprise status can sometimes be determinative of the outcome. See, e.g., EEOC v. The Village at Hamilton Pointe LLC , No. 3:17-CV-147-RLY-MPB, 2020 WL 1532112, at *4-5 (S.D. Ind. Mar. 31, 2020) (applying the Seventh Circuit’s factors and holding that a consultant-entity was not a joint-employer of a facility’s employees because, among other things, the facility retained the authority to hire and fire employees even though the consulting entity provided guidance and input into those decisions, even though the consulting entity set the facility’s budget and determined appropriate pay for its employees); EEOC v. Global Horizons, Inc. , 915 F.3d 631, 638 (9th Cir. 2019) (holding, as a matter of first impression, that it would apply the common law agency test to determine joint employment under Title VII).