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What Does "Joint Employer" Mean?


When you think of employment law, workplace discrimination or harassment, it is generally understood that the employer is the one responsible for preventing these unlawful actions. But who is considered your employer? That answer is not always as straightforward as you might imagine. A recent race discrimination case addressed the issues of who can be held responsible for alleged discrimination at a construction site. The contractor? The subcontractor?

Workplace Discrimination and Harassment Is Unlawful

There are several federal anti-discrimination statutes that protect employees from unlawful conduct. Title VII, one of those statutes, prohibits employers from discriminating against employees based on their race, gender, and other protected characteristics, when making employment decisions. Race discrimination, for example, does not always involve company policies or practices. In some cases discrimination involves harassment, which includes derogatory, racist jokes made by co-workers in the workplace. Regardless of the form of the discrimination, it is still unlawful.

EEOC v. Skanska USA Bldg., Inc.

The EEOC filed this lawsuit on behalf of a group of black workers who were hired by a subcontractor to work at a particular jobsite as buck hoist operators. The men alleged they were subjected to various racial slurs, such as the n-word, "monkey," and "black motherf----s." They were also exposed to racist graffiti in the portable toilets at the jobsite. One co-worker even threw liquid from the portable toilet onto one of the black worker's arms and into his eyes, causing him injury. The black workers made complaints to the owner and managers at the construction site. Yet, they allege that nothing was done to stop the racial harassment.

Who was responsible?

The black workers in this case took the position that both the owners of the construction site and the subcontractor, for whom they worked, should be held responsible. The appellate court agreed with them, finding that both could be held liable under a "joint employer" theory. The basis for this theory is that both entities had the ability to hire, fire or discipline these workers. Both entities supervised them or directed their work, exercising control of them.

In this particular case, the owner of the construction site controlled the day-to-day activities of the buck hoist operators, as well as their performance. Therefore, the court of appeals said the owner could be liable as well. In essence, entities are considered to be joint employers when they "share or co-determine" the essential terms and conditions of a worker's employment.

What is the benefit?

An obvious benefit of this court's ruling is that, if found liable, the aggrieved employee may be able to collect from both "joint" employers. As damages may include back pay, attorney fees, compensatory and punitive damages, all of which can be quite substantial, recovery can be greatly enhanced.

If you believe you may be a victim of discrimination in the workplace, give us a call to discuss your rights.

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