A recent decision, Jackson v. Abrams, Fensterman, Fensterman, Flowers, Greenberg & Eisman, LLP, addresses the question of who is an “employer” under the Family and Medical Leave Act, the New York State Human Rights Law, and the New York City Human Rights Law.
Plaintiff claims that the defendant law firm unlawfully terminated him as a chauffeur/driver after he was hospitalized to insert a stent. Defendant denied liability, and sought dismissal, on the ground that plaintiff was employed by firm principal Howard Fensterman, and not the law firm itself, as Fensterman’s personal chauffeur.
This is relevant, since in order to be covered under these statutes, the alleged “employer” must have a certain number of employees. For example, in order to be covered under the FMLA, the alleged “employer” must employ 50 employees in the relevant time frame.
Defendant cited to plaintiff’s deposition, where plaintiff admitted that he was “hired and employed by [] Fensterman, that his working hours and conditions of employment were dictated by Fensterman, and that he was responsible only to Fensterman.”
Standing alone, this would have been enough to warrant summary judgment for defendant. However, plaintiff also submitted additional documents “which, at the bare minimum, raise a question as to the firm’s involvement with plaintiff so as to warrant the deposition of its principal Fensterman.”
For example, plaintiff submitted a W2 wage and tax statement listing the firm as his employer; a “New Member Enrollment Form” signed on behalf of the firm; and a letter stating that he would be paid by both the firm and Fensterman and that when plaintiff was not working for Fensterman or his family, he would be working for the firm at its discretion.
The court noted that since “these documents were generated by the firm, the firm- through Fensterman- possesses knowledge of facts essential to justify opposition that cannot be obtained or explained by plaintiff.”
The court then explained why these documents are relevant to whether the firm or Fensterman was plaintiff’s “employer” under the State Human Rights Law. That statute does not define the term “employer.” Rather, the courts use a four-part test to determine whether a defendant is covered. Specifically, courts consider “whether the proposed employer 1) had the power of selection and engagement of the employee; 2) paid the salary or wages to the employee; 3) had the power to dismiss the employee; and 4) had the power to control the employee’s conduct.”
Therefore, the court granted a continuance on defendant’s summary judgment motion until after Fensterman’s deposition.