This guy sued the police for false arrest after they arrested him for a sexual assault that he did not commit. The case arose when the victim identified plaintiff as the attacker after seeing him walking in her neighborhood; she said plaintiff "looked like" the attacker. Is that identification too uncertain for the police to think twice about arresting him? It is not.
The case is Keith v. City of New York, a summary order decided on March 7. While plaintiff says the victim did not positively identify him as the attacker, in context, her testimony suggests she gave a definitive identification. The police also contemporaneously understood that she gave a definitive identification. "There is no reason to believe that the victim was using the phrase 'looked like' to communicate uncertainty," and the Court "will not permit Keith to manufacture a genuine issue of material fact by 'reading the victim's statement out of context." In addition, there are no cases that suggest that "in order for a witness's identification of a perpetrator to provide probable cause, it must be made with complete certainty." Since the officers are seeking dismissal based on qualified immunity -- which allows them to dismiss the case if they acted reasonably under the circumstances -- a reasonable officer in this situation could have concluded that probable cause existed to arrest plaintiff for the sexual assault.
Plaintiff also sues for malicious prosecution. That claim also fails, as probable cause is a defense to that claim as well. While the probable cause test for malicious prosecution is "slightly higher than the standard for false arrest cases," information from an informed citizen accusing someone of a specific crime is enough to provide the police with probable cause. Here, after plaintiff's arrest, the victim positively identified him once again, this time during a lineup.
Here is a comprehensive ruling on the rights of a female inmate in state prison who says she was physically abused by correction officers. The Court of Appeals says she may have enough evidence for trial.
The case is Harris v. Fisher, decided on March 15. Harris took the cotton from her mattress and pasted it to the windows in her cell so that no one could see inside. This was against the rules, so the officers entered her cell to remove the cotton. When plaintiff said there was no cotton left, she said they threw her to the ground, lifted her clothing "and forcibly opened her legs to allow the male officer to visually inspect her genitals for any additional cotton." On the summary judgment motion, the officers did not deny doing this.
Harris has a Fourth Amendment limited right to bodily privacy. She wins the case if she has a legitimate expectation of bodily privacy and the prison does not have sufficient justification to intrude on those rights. The analysis here is quite complex. Harris prevails on the summary judgment motion because the search was too intrusive in that (1) it was a visual bodily cavity search (2) conducted by male and not female officers and (3) it is unclear why the search was conducted in such a violent and forceful manner. Also, the Court says, it is hard to see the justification for the search. The officers don't really provide a reason supported by the record. Hypothetical reasons don't count. What is more, nothing suggests that possessing cotton (even in your genitalia) violates prison rules.
Harris also sues under the Eighth Amendment, which prohibits cruel and unusual punishment. On her testimony, she may satisfy the subjective element of this case (that the officers intended to violate her rights) because the officers deny that the search even took place. On the objective element (that the violation was harmful or serious enough to reach constitutional dimensions, plaintiff can win even if there was no actual contact with her genitalia. The visual inspection may be enough to win the case. This was also not a de minimus violation; she was thrown to the ground and they forcibly opened her legs, and she may have suffered a physical injury.
A suburban community on Long Island wanted to rezone public property so it could sell the property to developers and close a budget gap. Initially, the village was going to allow for multi-family zoning. Then the community objected, and the village instead rezoned the property for mostly single-family homes. The district court found the village liable under the Fair Housing Act for intentional discrimination, and the Court of Appeals affirms.
The case is MHANY Management v. County of Nassau, decided on March 23. After the Village of Garden City took up the initial zoning change for multi-family housing, residents objected, using what the district court interpreted as racial code-words. People worried that the property would consist of "affordable housing." Others said (1) the housing would not fit within the "flavor and character" of Garden City; (2) the apartments would have too many people living in them; and (3) the development would be an affront to those who had moved there from Queens, where multi-family housing led to overcrowded apartments and overburdened schools. After the community objected to the rezoning, unlike the initial rezoning process which moved at a snail's pace, the village quickly changed its plans, moving to rezone the property so that most of the housing would be single-family. The district court said the rezoning would have a disparate impact on potential minority homeowners.
The Court of Appeals (Pooler, Lohier and Droney) finds the district court was able to find the village liable for intentional discrimination under the Fair Housing Act. This case tells us how much authority the district courts have in reaching factual findings. From the Second Circuit's ruling, I cannot see any overt racial comments from the community in opposition to the multi-family rezoning. But the village's abrupt change of course in cutting the usual procedural corners to mostly exclude multi-family housing in the aftermath of citizen complaints that fell within the realm of racial objections was enough to find that the village capitulated to racial objections. That capitulation violates the civil rights laws, even if the government decisionmakers themselves were not racists. The crux of the Second Circuit's reasoning on the racial fears is below:
In considering the sequence of events leading up to the adoption of R‐T zoning, the district court also focused closely on the nature of the citizen complaints regarding R‐M zoning. Citizens expressed concerns about R‐M zoning changing Garden City’s “character” and “flavor.” In addition, contrary to Garden City’s contentions that any references to affordable housing were isolated, citizens repeatedly and forcefully expressed concern that R‐M zoning would be used to introduce affordable housing and associated undesirable elements into their community. Residents expressed concerns about development that would lead to “sanitation [that] is overrun,” “full families living in one bedroom townhouses, two bedroom co‐ops” and “four people or ten people in an apartment.” Other residents requested that officials “guarantee” that the housing would be “upscale” because of concerns “about a huge amount of apartments that come and depress the market for any co‐op owner in this Village.”
The district court also noted Garden City residents’ concerns about the Balboni Bill and the possibility of creating “affordable housing,” specifically discussing a flyer warning that property values might decrease if apartments were built on the Site and that such apartments might be required to include affordable housing under legislation pending in the State legislature. This flyer came to the attention of at least two trustees, as well as Fish and Schoelle. Concerned about the Balboni Bill, Garden City residents urged the Village officials to “play it safe” and “vote for single family homes.” Viewing this opposition in light of (1) the racial makeup of Garden City, (2) the lack of affordable housing in Garden City, and (3) the likely number of minorities that would have lived in affordable housing at the Social Services Site, ‐ the district court concluded that Garden City officials’ abrupt change of course was a capitulation to citizen fears of affordable housing, which reflected race‐based animus.
The Second Circuit also cites social science research to the effect that "people believe that the majority of public housing residents are people of color, specifically African American." Research also shows that the public comments are "recognized code words about low-income minority housing."
The district court's authority to resolve factual issues about the community's intent and the village's capitulation is quite broad and almost unreviewable on appeal. The village argued that the abrupt change in course in rezoning the property was simply efficient government decisionmaking. It also noted that no one said anything explicitly racial. But the civil rights laws recognize that racism can be subtle. As the Second Circuit notes:
Garden City’s argument appears to boil down to the following – because no one ever said anything overtly race‐based, this was all just business as usual. But the district court was entitled to conclude, based on the Arlington Heights factors, that something was amiss here, and that Garden City’s abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race‐based animus.
Evidence rulings in mortgage fraud case The world needs more Second Circuit decisions on the rules of evidence. Here's one that talks about "habit evidence," admissibility and the "best evidence" rule.
The case is Crawford v. Tribeca lending Corp., decided on March 8. Plaintiff sues over a fraudulent mortgage loan. She met with defendant's representative at Idlewild Airport to give signature samples on a blank sheet of paper. But she never agreed to the loan and that the company used the signature samples to forge mortgage documents. Defendants say this is all untrue and that plaintiff signed actual loan documents. The jury ruled against plaintiff, and the Court of Appeals (Cabranes, Parker and Lynch) affirms. The appeal raises a series of evidentiary issues that do not get much attention in the Second Circuit.
First, the company had a witness testify that he was the one who met with plaintiff at the airport, that she signed actual loan documents and that he had handled more than a thousand similar loan signings in his career, sometimes 10 per week during the 2004-05 mortgage refinancing craze. This was permissible habit evidence under Rule 406, which says, "Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness." We never see habit cases in the Court of Appeals, maybe because the district courts have discretion in ruling on evidentiary issues and nobody bothers to appeal those rulings. As habit under Rule 406 "describes one's regular response to a repeated specific situation," the jury was allowed to hear how Decarolis went about his business.
Second, the trial court allowed the jury to see 34 loan documents. Only three were originals, the rest photocopies. These records were not hearsay but proof that plaintiff entered into the loan agreement. The copies were also authentic under Rule 901, as the company put on witnesses who said the copies were true copies and not fakes. As Rule 901 "does not erect a particularly high hurdle" and is "satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification," the trial court properly allowed the jury to see the copies.
Third, the best evidence rule arises on appeal. Under Rule 1002, you have to use originals to prove the content of a writing. But that rule has exceptions. A copy is OK if "all the originals are lost or destroyed, and not by the proponent acting in bad faith." As the trial court did not abuse its discretion in finding the originals had been lost and there was no bad faith, it was permissible for the jury to see the copies.
The Court of Appeals has clarified the law governing associational discrimination claims under the Americans with Disabilities Act. The new test devised by the Court narrows the opportunities for plaintiffs to win under this statute.
The case is Graziadio v. Culinary Institute of America, decided on March 17. I have written about the Family and Medical Leave Act portions of the case at these links. This is a good case for FMLA plaintiffs, and the Second Circuit (Calabresi, Lohier and Lynch) vacates summary judgment for the employer under that statute. But the Court also says plaintiff has no case under the ADA's associational discrimination provision.
Briefly, plaintiff worked at CIA. Her son has diabetes. She was given the runaround when she sought FMLA leave to care for her son, and was eventually fired for abandoning her position. But she also sued under the ADA, which prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.." Borrowing from other Circuits that have already weighed on on this, the Court of Appeals for the first time tells us what this provision means.
to sustain an “associational discrimination” claim under the ADA, a plaintiff must first make out a prima facie case by establishing: 1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
The third prong of that test comes with an additional set of legal standards:
In evaluating what circumstances serve to raise such an inference, we draw significant guidance from the Seventh Circuit’s decision in Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004), which outlined “[t]hree types of situation[s]” or theories that would give rise to a claim of associational discrimination: 1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.
The distraction theory of associational discrimination might apply in Graziado's case, because she had to miss work because of her disabled son. But as the Second Circuit sees it, she has no case under the ADA. She has not presented evidence that she was fired because the CIA suspected distraction or that her concern for her son would cause her to work inadequately. Instead, she has presented evidence that she was fired because CIA thought she had taken too much leave from work to care for him. A subtle difference, but a difference.
In a footnote, the Court of Appeals says that employees like plaintiff who suffer termination because of a sick relative are not without a remedy. "In at least some such cases, employees who require accommodation in their work schedule to care for a family member with a disability may be able to take FMLA leave." The Court also notes that, under the ADA's associational discrimination provision, employees are not entitled to a reasonable accommodation; that accommodation is only available when the plaintiff-employee is disabled, not when a loved one is disabled. While it is true that the FMLA might protect employees who are fired because, like plaintiff, they have to miss work to care for a loved one, that statute is more limited in scope than the ADA. Under the FMLA, you are not covered unless you worked at least one year for the employer and logged at least 1,250 hours that year. Also, employers are not covered under FMLA unless they have 50 employees. The ADA does not have these technicalities, and it covers employers with at least 15 employees.
Jury can find Culinary Institute of America violated FMLA in terminating woman who cared for sick kids
This FMLA case provides some guidance on the interference clause under this statute, which allows employees 120 days of unpaid leave to care for a sick family member. At this link, I wrote about the individual liability portion of the ruling. This time around, I write about the interference portion.
The case is Graziadio v. Culinary Institute of America, decided on March 17. Plaintiff needed leave for two reasons. One son, Vincent, was hospitalized with diabetes, Another son, DJ, broke his leg. After she took leave, plaintiff and management went around and around on when she could return and what paperwork she had to file to maintain that leave. She was eventually fired for abandoning her job. Taking up the issue of what constitutes interference for the first time, the Court of Appeals (Calabresi, Lohier and Lynch) lays out the standard:
to prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA. Plaintiff has claim for the FMLA leaves for both sons.
As for Vincent, while plaintiff did take initial leave and was allowed to return to work, the jury could find that she tried to take intermittent leave afterwards and that her leave was not approved. It was during this intermittent leave period that CIA was dragging its feet and giving plaintiff a hard time about whether she had submitted the right paperwork under the FMLA. The Second Circuit also finds that plaintiff was entitled to this leave. While CIA questioned whether plaintiff submitted the proper FMLA form, she timely tried to cure any deficiencies by sending a new certification that outlined Vincent's medical schedule. The jury could find this form was enough to meet the certification requirements under the statute. In sum, plaintiff can win her case with respect to the Vincent-related leave.
Plaintiff can also win the case on her DJ-related leave. The jury could find she tried in good faith to comply with CIA's certification requests and that defendant's conduct excused any residual failure in compliance. When CIA asked plaintiff for medical certification as to DJ, that request was vague and did not give her adequate notice that CIA wanted medical certification. The letter also misstated the deadline for plaintiff to comply with the request. She then tried to restate and clarify her request for certification fairly quickly. The process got so convoluted along the way that, really, your eyes may glaze over while reading about it. The Court says:
Under these circumstances, a jury could conclude that Graziadio made sufficient 2 good faith efforts to comply with her employer’s requests and that defendants’ conduct — their imprecision in requesting certification, their failure to answer Graziadio’s questions responsively, and their failure to communicate with Graziadio after deeming her doctor’s note deficient—relieved Graziadio of any unsatisfied obligation to provide a medical certification to support her leave. Freed of this obligation, Graziadio may well have been entitled to leave to care for T.J. and may, therefore, be able to show that defendants interfered with that leave.
This evidence also supports plaintiff's retaliation claim under the FMLA. CIA said plaintiff abandoned her position. But plaintiff can show that excuse is implausible. CIA told her to contact her supervisor to arrange to return to work, but in that same missive, she was told that if she wants to return to work, she must submit proper FMLA medical certifications. "Given that, for the preceding two months, [supervisor] Garrioch had refused to allow Graziadio to return to work until she submitted new paperwork, it would have been reasonable for Graziadio to read this email as taking the same position: i.e., in order to return to work, you must submit appropriate paperwork and, presumably in or after doing so, you must contact your supervisor." The Second Circuit proceeds to cut through CIA's reasoning in terminating plaintiff, finding its excuses "difficult, to put it mildly, to accept defendants' argument" in one area. Another CIA argument, the Court says, is "hard to believe."
The Court of Appeals has issued its most definitive case under the Family and Medical Leave Act in years, primarily reaching two holdings: individual supervisors may be held liable under the Act, and also outlining the contours of an FMLA interference claim.
The case is Graziadio v. Culinary Institute of America, decided on March 17. In this post, I will talk about the individual liability portion of the case. In a few days, you will read about the other holdings. Plaintiff was a Payroll Administrator for CIA. When, in June 2012, her 17 year old son Vincent was hospitalized with diabetes, plaintiff asked her supervisor, Gardella, for permission to care for him. Later in June, plaintiff's other son, TJ, broke his leg. Plaintiff asked Gardella for permission to miss work, and Gardella ran it by HR Director Garrioch. That is when things got difficult and convoluted. From plaintiff's perspective, she got the run-around and otherwise blown off when she tried to clarify when to return to work, repeatedly asking management for the right FMLA paperwork. CIA told plaintiff it did not have the proper information from her to continue the FMLA leave. Plaintiff also tried without success to schedule a meeting with management about these issues. Plaintiff then hired a lawyer who tried to iron out these issues with CIA, which insisted that plaintiff had not provided the right information for FMLA leave. She was eventually fired for abandoning her position.Of course, plaintiff said she did not abandon her position and that, instead, management had not properly recognized her FMLA leave at the time.
Every lawsuit has a bad guy, even if the statute does not provide for individual liability. Plaintiff sued CIA, and Garrioch under the FMLA. The Second Circuit (Calabresi, Lynch and Lohier) decides for the first time that plaintiff can sue the individual defendant personally, citing cases from around the country and district courts in the Second Circuit. The legal standard the Court devises draws from the FLSA's "economic reality" test, which determines whether the defendant had the power to hire and fire, supervised and controlled employees, determined salaries and maintained employment records.
Under this test, Garrioch was an "employer" under the FMLA because she played a substantial role in plaintiff's termination, even if that decision formally rested with someone else. Garrioch also exercised control over plaintiff's employment, at least with respect to her FMLA leave. Here's the wrap-up on this issue:
on the overarching question of whether Garrioch “controlled plaintiff’s rights under the FMLA,” there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate a) that Garrioch reviewed Graziadio’s FMLA paperwork, b) that she determined its adequacy, c) that she controlled Graziadio’s ability to return to work and under what conditions, and d) that she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination). Indeed, Garrioch specifically instructed Gardella and Maffia that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio’s leave dispute and return to work.
Every village has a gadfly. This gadfly sued his village on Long Island. He claimed the village retaliated against him for speaking out on public matters, in part, by driving a truck into him and arresting him for trespass. But the case is dismissed.
The case is Bartels v. Incorporated Village of Lloyd Harbor, a summary order decided on March 17. Who knows what Bartels spoke out about in the town; the decision does not tell us. But he claims that one day he was on the side of the road taking pictures of a dangerous hanging wire "when a Village dump truck accelerated and veered toward him, causing him to leap over the guardrail" and down an embankment. He also says that on another occasion that two Village police officers retaliated against him for trying to document environmental harm in the Village.
On the truck incident, plaintiff said at deposition that he photographed the truck coming at him. But, the Second Circuit (Hall, Chin and Carney) says, "contrary to that testimony, the first photo clearly reveals the truck veering away from him, rather than toward him." The photographic evidence is conclusive enough that it does not matter what plaintiff said at deposition. Under the Supreme Court's ruling in Scott v. Harris, 550 U.S. 372 (2007), conclusive photos and videos can entitle the defendant to summary judgment even if the plaintiff's testimony would otherwise create a factual dispute for trial.
This is a summary order, so we don't know all the facts, but the first thing that comes to mind here is that if the truck is coming at plaintiff on the side of the road, he would not able to protect himself and take a picture at the same time. He would only be able to take the picture when the truck is veering away from him. I know that people use their cell phones all the time these days and will risk death in order to get a good picture for Instagram, but some people still value life over good photographs. I could be wrong on this. The district court ruling, at 97 F. Supp. 2d 198 (EDNY 2015), does show the full color photographs with the judge's reasoning why the photos kill the claim. The moral of the story is that photographic evidence can entitle the defendant to summary judgment even if the plaintiff's deposition testimony might otherwise entitle him to a trial.
The other claim is that plaintiff was traversing his neighbor's property in a bathrobe and slippers when two Village officers told him he was trespassing. They pursued him, and plaintiff sought refuge in the neighbor's house. On appeal, plaintiff says the officer got out his taser, but in deposition, he saw the officer "screwing around" with something on his belt, maybe a cellphone. No officer touched plaintiff. The Court of Appeals says the gadfly has no case for substantive due process, which requires proof that a government actor did something that shocked the conscience.
Under Rule 68, if defendant offers a judgment to the plaintiff for a certain amount, and the plaintiff rejects that offer but goes to trial and wins less money then the Rule 68 offer, then the plaintiff forfeits the attorneys' fees expended after the Rule 68 offer was served. This result is particularly painful for the plaintiff if he is suing under the civil rights laws, which allows him to recover "prevailing party" attorneys fees from the defendant.
Since Rule 68 can be an effective way to settle cases, many judges think defense lawyers do not use them enough. One district court judge in White Plains used to have a notice as you entered the courtroom that urged defendants to serve Rule 68 offers on counsel. This case is one of the few in recent years that looks at how Rule 68 offers should be worded.
The case is Steiner v. Lewmar, Inc., decided on March 7. This is not a civil rights case but an action under the Lanham Act, breach of contract and unfair trade practices. The holding would apply to civil rights cases, though. Defendant served a Rule 68 offer on plaintiff that offered $175,000 provided the case was dismissed, "including all claims that have been made or could have been made concerning the LiteTouch trademark." The offer also covered all claims that could have been made under the parties' Agreement (or contract) that gave one party the exclusive right to make and sell Steiner's products.
Normally, Rule 68 offers say the offer includes the plaintiff's attorneys' fees. This one did not expressly mention fees. So plaintiff moved for attorneys' fees in the amount of $383,000. The district court said the Rule 68 offer included fees, and the Court of Appeals (Katzman, Chin and Castel [D.J.]) agrees, in part. Plaintiff may still get fees if the district court decides to award them on remand.
If Rule 68 offers are ambiguous on the issue of attorneys' fees, then the language is construed against the defendant, and plaintiff can move for fees. With respect to the claims the parties litigated under the Agreement, this offer was not ambiguous because it covered "all claims that have been made or could have been made concerning ... the Agreement." Attorneys' fees would be such a claim. "Any contractual claim for reasonable attorneys' fees brought pursuant to the Agreement necessarily 'concerns' the Agreement." The context supports this holding. The parties intended to include contractual claims for attorneys' fees, as they made reference to them in pre-trial filings.
But the case also involved claims under the Connecticut Unfair Trade Practices Act, which allows for fee-shifting. While Rule 68 offer would cover claims under the Agreement, "the claim for attorneys' fees under CUTPA arguably does not fall within the language of the Offer. The claim for attorneys' fees under CUTPA arguably is not encompassed by the language 'all claims ... concerning the LiteTouch trademark." The Second Circuit reminds us that "courts have held that statutory attorneys' fees claims are not unambiguously encompassed in a Rule 68 offer when the offer refers to substantive claims but does not explicitly refer to attorneys' fees." The Court of Appeals cites case from other circuits for this proposition. It is now the standard in the Second Circuit.
The case is remanded to the district court to take up the fee petition once again.
These plaintiffs brought a wage and hour claim against AT&T Mobility and other defendants. AT&T argued that it was not plaintiffs' employer. Plaintiffs said AT&T was a joint employer with other entities. The district court said AT&T was not a joint employer. The Court of Appeals says the jury may find otherwise.
The case is Grenawalt v. AT&T Mobility, LLC, a summary order issued on March 14. Sometimes plaintiffs want to name more than one entity as the defendant to ensure that someone is able to pay out the judgment. In this FLSA case, plaintiffs provided security for AT&T. They were directly employed by someone else who provided guards to AT&T.
This is a complicated area of law. The Second Circuit (Cabranes, Livingston and Lynch) identifies three separate tests for determining whether an entity is a joint employer. "The first test, derived from Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir. 1984), looks to whether a putative employer exercises 'formal control' over a worker." But this test does not always work in these cases. "Because Carter defines employment more narrowly than FLSA requires, satisfying this test is sufficient, but not necessary, to show joint employment." The second test, set out in Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988), focuses on whether “the workers depend upon someone else’s business . . . or are in business for themselves.” This test does not always apply because it is 'typically more relevant for distinguishing between independent contractors and employees' than for determining by whom workers who are assumed to be employees are employed." So we look to the third test, first developed in Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2013).
Zheng "weighed six factors in determining whether a garment manufacturer exercised 'functional control' over subcontracted workers, and was therefore their employer under FLSA:
(1) whether [the manufacturer’s] premises and equipment were used for the [putative employees’] work;
(2) whether the Contractor[s] . . . had a business that could or did shift as a unit from one putative joint employer to another;
(3) the extent to which [the putative employees] performed a discrete line-job that was integral to [the manufacturer’s] process of production;
(4) whether responsibility under the contracts could pass from one subcontractor to another without material changes;
(5) the degree to which the [manufacturer] or [its] agents supervised [the putative employers’] work; and
(6) whether [the putative employees] worked exclusively or predominantly for the [manufacturer].
These factors are “nonexclusive and overlapping,” and a court “need not decide that every factor weighs against joint employment.” The Second Circuit runs through these factors in finding that plaintiffs could be considered "employees" of AT&T. The analysis in this case is extensive for a summary order, making me wonder why this is a summary order and not a published opinion.
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Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.