©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 61 managers worked at another branch.501 In the Ninth Circuit, that decision depends not just on the geographic distance between offices, but also on “the nature of the services provided and the degree of central administration, such as budgeting, hiring, and day-to-day management.”502 The court found that there was no reason to combine the branches in this case, because, among other things, the branches were managed independently, had their own sales and profitability goals, each serviced and solicited distinct clients, and there was never any significant overlap in the daily operations.503 Accordingly, for purposes of the EPA—but not Title VII—the plaintiff was limited to just one comparator. 4. Identifying The “Employer” Under The EPA One issue that is frequently litigated in EPA lawsuits is whether one or more entities can be considered the “employer” of the plaintiff. Often that determination depends on what test is used to determine joint employment. Under Title VII, subject to some enumerated exceptions, an “employer” means “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.”504 The EPA uses the broader definition found in the FLSA, which defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .”505 An “employee” is defined as “any individual employed by an employer,”506 and the term “employ” means “to suffer or permit to work.”507 Together, those definitions have been interpreted as “the broadest definition . . . ever included in any one act.”508 Courts interpreting that definition have focused on the “economic realities” of the purported employment relationship. The “economic realities” inquiry, in turn, focuses on a number of factors related to control over the employee, including whether the alleged employer (1) had the power to hire and fire the employee, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.509 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,510 the court 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.511 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.512 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, 501 Id. at *5. 502 Id. (quoting Winther v. City of Portland, 21 F.3d 1119, at *1 (9th Cir. 1994)). 503 Id. at *6. 504 42 U.S.C. § 2000e(b). 505 29 U.S.C. § 203(d). 506 Id. § 203(e)(1). 507 Id. § 203(g). 508 U.S. v. Rosenwasser, 323 U.S. 360, 363 n.3 (1945). 509 See, e.g., Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132, 139 (2d. Cir. 1999). 510 Moore v. Baker, No. 18-cv-311-KD-B, 2019 WL 1374674 (S.D. Ala. Mar. 8, 2019). 511 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. 512 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.
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