Sitting outside this weekend I was thinking about things I wish I had when my kids were toddlers, things that would have helped to keep them occupied. The first things that came to mind were all electronic — iPhone, iPad, Netflix. But then I came upon this. And it’s good that I didn’t know about it a decade ago.
From the website:
Inspiration found in a bathroom stall!
PooPaint allows kids to wipe using toilet paper that feels as if they were playing with a colouring book.
Making potty time into a positive and fun experience!
Yes, my friends, it’s a coloring book for poo, like color by numbers but with only one color — brown. Or maybe for some, a beautiful mahogany. Square 3 is an exact reproduction of Cleveland winters: fill in the whole page, leaving gray at the top for sky.
Anyway, the case I want to talk about today is a joint employment case from the Sixth Circuit Court of Appeals. For potential joint employers, the decision is like potty time with poopaint — “a positive and fun experience!” For workers, it’s just poo.
In this case, a physical therapist assistant named Thomila worked in a nursing home. The operator of the nursing home contracted with a third party to provide staff. The third party did the hiring, firing, controlled pay, provided benefits, supervised the workers, and scheduled them.
Thomila worked for the third party. At one point Thomila accused her supervisor, also a third party employee, of sexually harassing her. The third party investigated and fired him. So far, so good.
But then the nursing home operator — which apparently liked the supervisor — decided that Thomila was no longer a “good fit” for the nursing home and asked the third party to remove her. It did.
Thomila sued the nursing home operator, claiming that its request to remove her (after she complained of sexual harassment) was retaliation in violation of Title VII. Although she was employed by the third party, she claimed that the nursing home operator was a joint employer and therefore could be liable under Title VII’s anti-retaliation rule.
But the case was thrown out on a motion for summary judgment. The court ruled that the nursing home operator was not a joint employer under the test used for determining joint employment under Title VII.
The test for joint employment under Title VII is whether the alleged joint employer has the ability to:
- Hire and fire,
- Affect compensation and benefits, and
- Direct and supervise performance.
(At least, that’s the test in the Sixth Circuit, which includes OH, MI, TN, and KY. You’d think the test would be the same everywhere since this is a federal law, but it sometimes varies a bit.)
Anyway, back to Thomila. The third party controlled all of these things, so the nursing home operator was not a joint employer. Since it was not a joint employer, it has no duty to Thomila under Title VII. The anti-retaliation provisions in Title VII did not apply. Case dismissed.
Thomila tried one other claim too, and this may have been her stronger argument. She alleged that by firing her, the nursing hone operator interfered with her access to employment opportunities. That’s a separate kind of claim. But the court ruled that the nursing home operator was not liable under that claim either, since the third party had offered Thomila other placement opportunities (but all were out of state). On this claim, the decision was 2-1, with the dissenting judge arguing that the interference claim should have been allowed to go forward. The interference claim does not require a finding of joint employment.
The lesson here for employers is that the test for joint employment is technical. The facts matter a lot. The risk of joint employment can be minimized if the relationship is carefully structured so that the third party retains control over the factors listed above. The contract should be drafted carefully, detailing who is responsible for what.
A poorly drafted contract is not worth the paper it’s written on. Kind of like that specific kind of paper advertised here as “Inspiration found in a bathroom stall!” And that should not be the kind of paper you’re looking for when drafting your contracts.
So draft wisely and, for “a fun and positive experience!“, choose your paper carefully.
© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.