Developments In Equal Pay Litigation - 2022 Update

56 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP determined the rate and method of payment, and (4) maintained employment records. 483 Deciding that issue can be quite complex and often gives rise to significant substantive litigation apart from the actual merits of a lawsuit. For example, in Moore v. Baker , 484 the District Court for the Southern District of Alabama allowed a complaint against alleged joint-employers to proceed, holding that the fact-intensive nature of the joint- employer inquiry required discovery and further factual development. In that case, a Director of Student Support Services at a community college sued her employer(s) for reassigning her to a new position as Adult Education Counselor/Student Services Coach. 485 The district court had to consider whether the Board of Trustees was plaintiff’s employer under title VII and the EPA. The court first noted that the term “employer” is defined differently under Title VII and the EPA. 486 Plaintiff alleged that the college and the Board of Trustees should be treated as a single employer because the Board of Trustees has the authority to make rules and regulations for the college, including regarding qualifications for faculty in establishing and maintaining an annual salary schedule. 487 Plaintiff also alleged that the college president was directly responsible to the Chancellor and the Board of Trustees for the college’s day-to-day operations and serves at the pleasure of the Board of Trustees. 488 The court held that those allegations would suffice at the motion to dismiss stage under both statutes, holding that joint-employment was a fact-specific inquiry that was best left to the summary judgment stage. 489 Although these types of issues more typically involve different corporate entities, the EPA’s definition of an “employer” is broad enough to include individual managers or supervisors who are shown to exercise substantial control over the plaintiff’s terms of compensation and work activities. For example, in Gunaldo v. Board of Supervisors of Louisiana State University , 490 the court had to decide whether the plaintiff had alleged sufficient facts to name her supervisor, the University’s Vice Chancellor of Academic Affairs, the Director of HR, and the University Chancellor as her “employers” along with the University. Applying the economic realities test, the court held that plaintiff’s complaint had not adequately alleged an EPA claim against her supervisor or the Chancellor because their relationship to plaintiff satisfied only one or two of the elements of that test. With respect to her supervisor, plaintiff had alleged that he exercised control over her work schedule and conditions, but she did not allege that he also controlled her salary, had the power to hire or fire, or maintained her employment records. 491 And while the Chancellor 483 See, e.g., Herman v. RSR Sec. Servs., Ltd. , 172 F.3d 132, 139 (2d. Cir. 1999). 484 Moore v. Baker , No. 18-cv-311-KD-B, 2019 WL 1374674 (S.D. Ala. Mar. 8, 2019). 485 Id. at *1. The community college subsequently hired a new director of student support services at a higher salary than plaintiff had been paid. Id. at *2. 486 Id. at *6. Under Title VII, an employer is “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such a person.” Id. (quoting 42 U.S.C. § 2000e(b)). The definition of “employer” under the FLSA/EPA is: “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. at *7 (quoting 29 U.S.C. § 203(d)). The court noted that term is defined more broadly under the FLSA/EPA than under the common law. Id. In order to determine whether persons or entities are employers under the FLSA/EPA, courts look to the economic reality of the circumstances concerning whether the putative employee is economically dependent upon the alleged employer. Id. 487 Moore , 2019 WL 1374674, at *6. 488 Id. 489 Id. at *7. Similarly, in Jafri v. Signal Funding LLC , No. 19-cv-645, 2019 WL 4824883 (N.D. Ill. Oct. 1, 2019), the Chief Operating Officer of a financial company brought a claim under the federal and Illinois Equal Pay Acts, alleging that she was paid less than five of her male subordinates. Id. at *1. The complaint was brought against plaintiff’s employer entity, as well as affiliated entities and the founder and Managing Partner of the corporate parent of those affiliated entities. Id . The employer argued that the complaint failed to allege that the affiliated entities had any control over plaintiff’s pay. Id . at *4. However, the district court held that, “the allegation that she was employed by these entities is sufficient to plausibly allege that the entities had some control over her pay. This is particularly so when one individual—defendant [founder]—owns all three entities and is alleged to have directed [plaintiff] to move from Illinois to Florida in order to be able to more effectively work for all three entities.” Id . The district court therefore allowed the case to proceed to discovery in order to determine, among other things, whether each of the defendants had the alleged control over plaintiff’s compensation. Id . 490 Gunaldo v. Bd. of Supervisors of La. State Univ. , No. 20-cv-154, 2020 WL 4584186 (E.D. La. Aug. 10, 2020). 491 Id. at *12.