Employment Law Daily FedEx was not ‘joint employer’ of cleaning service’s worker
Tuesday, March 22, 2016

FedEx was not ‘joint employer’ of cleaning service’s worker

By Lorene D. Park, J.D. Because FedEx could not hire or fire a worker assigned by a cleaning service to work at its facility, did not control her day-to-day activities, and did not pay her directly, the company was not her “joint employer,” so her Title VII, ADEA, and state law discrimination and retaliation claims failed. Granting summary judgment, a federal district court in New York also rejected the plaintiff’s argument that the fact that FedEx investigated her discrimination claim pursuant to its policies was evidence of an employer-employee relationship. To the contrary, the policy specifically prohibited discrimination against those providing services to the company, not just against employees (Liotard v. FedEx Corp., March 17, 2016, Roman, N.). The plaintiff worked for Bright Horizons, which provides commercial office cleaning services to various corporate customers. In 2011 and 2012, she was assigned to perform janitorial services at a FedEx facility, which was one of Bright Horizon’s larger accounts. The owner of Bright Horizons directed her to work early mornings as requested by FedEx and walked her through the facility, telling her what tasks to complete. He only occasionally visited the facility but stayed up-to-date on customer satisfaction by calling FedEx. On rare occasions the FedEx service center manager would ask the plaintiff to complete a cleaning task, which she would do. The parties disputed whether she viewed this manager as a customer or a boss. Plaintiff complains, is reassigned. In April 2011, the third day of the plaintiff’s assignment at the FedEx service center, she told the owner of Bright Horizons about inappropriate comments directed toward her by two male FedEx employees. She complained additional times throughout the year, making her final complaint to a FedEx maintenance manager, who forwarded her written statement to a regional manager, who then sent it to human resources. An HR manager for FedEx called the plaintiff to discuss her concerns, and then investigated, interviewing three shop technicians. Finding the technicians credible, he concluded that he could not corroborate the plaintiff’s complaint. The HR manager then asked the owner of Bright Horizons to reassign the plaintiff to another location, which he did. She quit Bright Horizons two weeks later and later filed suit against FedEx under Title VII, the ADEA, and New York law, alleging discrimination and harassment based on her gender and age as well as retaliation. FedEx not “joint employer”. Granting summary judgment for FedEx, the court applied the Second Circuit’s five-factor “immediate control” inquiry and concluded that FedEx was not the plaintiff’s joint employer because it did not exercise sufficient control over her. First, she was hired in 2007 by the owner of Bright Horizons and it wasn’t until 2011 that she was assigned to FedEx, which did not have the authority to fire her. She was not “terminated” when her placement at FedEx ended, but was rather reassigned to an auto dealership. In addition, FedEx did not have control over the plaintiff’s day-to-day activities. Though FedEx supervisors occasionally asked her to perform certain cleaning tasks, and a FedEx manager asked that she be assigned to work in the mornings, that did not create an employer-employee relationship. Also, she was paid by Bright Horizons and never received remuneration or benefits directly from FedEx. Nor did she receive any paperwork from FedEx, though she did abide by a piece of paper posted to a utility closet door listing the company’s rules on dress code and manners addressed “to all personnel.” The court also noted that Bright Horizons provided the majority of the cleaning supplies used by the plaintiff, though she used paper products, gloves, and a vacuum provided by Fed Ex. FedEx’s anti-discrimination policy no help to plaintiff. The court rejected the plaintiff’s argument that the detailed aspects of FedEx’s policies under which its HR manager and other supervisors investigated her claims suggested that she was an employee. That argument ignored the plain language of the policy, which prohibited discrimination, harassment, and other unlawful acts “against employees, applicants, customers, vendors or other service providers or other individuals while associated with [FedEx].” Though some of the more specific provisions refer only to employees, the overarching purpose of the policy stated that it applied to non-employees as well. Because the plaintiff failed to raise a triable issue on whether she was FedEx’s employee, summary judgment was appropriate.

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