Brenda Butler v. Drive Automotive Industries of

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 6:12-cv-03608-JDA. [999620920]. [14-1348]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1348

BRENDA BUTLER,
Plaintiff - Appellant,
v.
DRIVE AUTOMOTIVE INDUSTRIES OF AMERICA, INCORPORATED, d/b/a
Magna Drive Automotive,
Defendant – Appellee,
and
EMPLOYBRIDGE OF DALLAS INCORPORATED, d/b/a ResourceMFG;
STAFFING
SOLUTIONS
SOUTHEAST
INCORPORATED,
d/b/a
ResourceMFG,
Defendants.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Jacquelyn D. Austin, Magistrate
Judge. (6:12-cv-03608-JDA)

Argued:

January 29, 2015

Decided:

July 15, 2015

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion.
Judge Floyd wrote
the opinion, in which Judge Keenan and Judge Harris joined.

ARGUED: Jeffrey Parker Dunlaevy, STEPHENSON & MURPHY, LLC,
Greenville, South Carolina, for Appellant.
Stephanie E. Lewis,

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JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.
ON BRIEF: Brian P. Murphy, BRIAN MURPHY LAW FIRM, PC,
Greenville, South Carolina, for Appellant.
Wendy L. Furhang,
JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.

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FLOYD, Circuit Judge:
In this Title VII employment discrimination action, Brenda
Butler

seeks

experienced

to

recover

while

(Drive) factory.

for

working

sexual

at

a

harassment

Drive

she

Automotive

allegedly
Industries

In the proceeding below, Drive argued that

Butler was actually employed by a temporary staffing agency,
ResourceMFG, and therefore Drive was not an “employer” subject
to

Title

VII

acknowledged

liability.

that

in

Although

some

instances

the
an

district

employee

can

court
have

multiple “employers” for Title VII purposes, it concluded that
in

this

case

Accordingly,

ResourceMFG

the

district

was

court

Butler’s
granted

sole

summary

employer.
judgment

to

Drive on Butler’s claims.
Like

the

district

court,

and

several

of

our

sister

circuits, we agree that Title VII provides for joint employer
liability.

We

further

conclude

that

the

so-called

“hybrid”

test, which considers both the common law of agency and the
economic realities of employment, is the correct means to apply
the joint employment doctrine to the facts of a case.

The

district court did not explicitly use the “hybrid” test in its
opinion.

Under our de novo standard of review, we articulate

the hybrid test for the joint employment context and apply it to
the

facts

of

this

case,

concluding

3

that

Drive

was

indeed

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Butler’s

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employer.

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Accordingly,

we

reverse

and

remand

for

consideration of Butler’s Title VII claims on the merits.

I.
Appellant
temporary

Brenda

employment

Industries

in

Butler

was

agency,

to

Piedmont,

South

hired
work

by
at

Carolina.

ResourceMFG, 1
Drive

Drive

a

Automotive
manufactures

doors, fenders, and other parts for automotive companies.

The

company hires some employees directly and employs others through
temporary employment agencies.
Drive and ResourceMFG each exercised control over various
aspects

of

Butler’s

employment.

For

example,

Butler

wore

ResourceMFG’s uniform, was paid by ResourceMFG, and parked in a
special

ResourceMFG

lot.

ResourceMFG

also

had

ultimate

responsibility for issues related to discipline and termination.
Drive, however, determined Butler’s work schedule and arranged
portions

of

Butler’s

training.

Drive

employees

Butler while she worked on the factory floor.

supervised

Butler said she

was told by ResourceMFG that she worked for “both” Drive and
ResourceMFG.

J.A. 36-37 (“They always told me that both of them

1

Employbridge of Dallas Inc. and
Southeast Inc. do business as ResourceMFG.

4

Staffing

Solutions

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w[ere]

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our

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employers.

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. . .

[W]e

w[ere]

considered

to

Drive

supervisors,

be

working for both.”).
Butler

claims

that

one

of

her

John

Green, verbally and physically harassed her throughout her time
at Drive.

Specifically, Butler alleges that Green made repeated

comments about Butler’s physical features, such as “You sure do
have a big old ass”; “I wish my girlfriend had a big old ass
like yours”; “Boy, I love women with big old asses”; and calling
her a “big booty Judy.” J.A. 94, 103, 132.
his

crotch

reported

against
Green’s

representative,
Drive,

Butler’s

Lisa

buttocks.

conduct

Ryan

to

J.A.

98-100.

ResourceMFG’s

Roberson,

and

Thomas.

Gardner

Green also rubbed

to

Green’s

According

to

Butler
on-site

supervisor

Butler,

at

however,

neither took any action to curb the harassment.
The harassment culminated on December 19, 2010, when Green
directed Butler
laser.”

to

Butler

work

on

refused,

J.A. 86.

particular

saying

overtime the night before.
said “hell no.”

a

she

machine

was

tired

again.

Id.

When

from

“the

working

Green said that his supervisor had
Green continued, “You have to run it.

If you can’t fucking run it, take your ass home.
assignment has ended.”

called

Id.

Butler

. . .

[Y]our

He also called her “big booty Judy”
objected

to

Green’s

language,

informed her that she was a temp and could be easily fired.

5

he

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When Butler informed Thomas of the encounter, Thomas asked
another supervisor at Drive that Butler be terminated.
383.

The request was then sent to ResourceMFG.

J.A.

A few days

later, Green called Butler and implied that he could save her
job by performing sexual favors for him.

Butler refused.

A

ResourceMFG supervisor then called her to tell her she had been
terminated from Drive.
In November 2012, Butler filed suit against both Drive and
ResourceMFG in South Carolina state court.

After Drive timely

removed the case to federal court, the parties agreed to dismiss
the

case

against

ResourceMFG,

leaving

Drive

as

the

sole

remaining defendant. In April 2013, the district court granted
Drive’s motion for summary judgment, 2 finding that Drive did not
exercise sufficient control over Butler’s employment such that
it could be liable as her employer under Title VII.

Butler now

appeals the district court’s grant of summary judgment.

II.
Pursuant to 28 U.S.C. § 636(c)(3), we have jurisdiction of
this

appeal

from

the

judgment

of

the

magistrate

judge.

We

review the district court’s grant of summary judgment de novo,
2

The parties consented to the jurisdiction of a magistrate
judge.
For the sake of simplicity, we will refer to the
magistrate judge as the district court.

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drawing “reasonable inferences in the light most favorable to
the non-moving party.”

Dulaney v. Packaging Corp. of Am., 673

F.3d 323, 330 (4th Cir. 2012).
of

statutory

construction

We also review de novo questions

interpretation—in
of

“employer”

this
Title

in

case,
VII.

the

proper

Stone

v.

Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).
Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

To overcome a motion for summary judgment, however, the

nonmoving party “‘may not rely merely on allegations or denials
in its own pleading’ but must ‘set out specific facts showing a
genuine

issue

for

trial.’”

News

&

Observer

Publ’g

Co.

v.

Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)
(quoting Fed. R. Civ. P. 56(e)).

III.
An entity can be held liable in a Title VII action only if
it is an “employer” of the complainant.

Title VII of the Civil

Rights Act of 1964 defines an “employer” as 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.”

42 U.S.C. § 2000e(b).
7

In turn, an “employee” is “an

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individual employed by an employer.”
Supreme

Court

“employee”
nothing.”

in

has

noted,

federal

law

Id. § 2000e(f). As the

definitions
are

often

of

“employer”

circular

and

and

“explain[]

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323

(1992).
The
Butler.

parties

do

not

dispute

that

ResourceMFG

employed

The dispositive question on appeal is whether Drive

also employed Butler for Title VII purposes.

In answering this

question, we first must consider the threshold issue of whether
an employee can have multiple “employers” under Title VII.
review of this question of law is de novo.

Our

Cilecek v. Inova

Health Sys. Servs., 115 F.3d 256, 261 (4th Cir. 1997) (citing
MacMullen v. S.C. Elec. & Gas Co., 312 F.2d 662, 670 (4th Cir.
1963)).

The district court accepted the possibility that both

entities could in theory be Butler’s “employer” for Title VII
purposes

pursuant

to

the

joint

employment

doctrine.

As

set

forth below, we conclude that the joint employment doctrine is
an

appropriate

construction

of

Title

VII,

and

so

affirm

the

district court on that issue.

A.
Other courts have found that two parties can be considered
joint employers and therefore both be liable under Title VII if
they

“share

or

co-determine

those
8

matters

governing

the

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essential terms and conditions of employment.”

Bristol v. Bd.

of Cnty. Comm’rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc)
(quoting Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350,
1360 (11th Cir. 1994)).
both

entities

employees.’”

‘exercise

In other words, “courts look to whether
significant

control

over

the

same

Id. (quoting Graves v. Lowery, 117 F.3d 723, 727

(3d Cir. 1997)).

“The basis for the finding that two companies

are ‘joint employers’ is that ‘one employer while contracting in
good faith with an otherwise independent company, has retained
for itself sufficient control of the terms and conditions of
employment
employer.’” 3

of

the

employees

who

are

employed

by

the

other

Torres-Negrón v. Merck & Co., 488 F.3d 34, 40 n.6

(1st Cir. 2007) (quoting Rivas v. Federación de Asociaciones
Pecuarias de P.R., 929 F.2d 814, 820 n.17 (1st Cir. 1991)).
Although this Circuit has never expressly adopted the joint
employment doctrine in the Title VII context, district courts in
this Circuit have frequently applied it.

3

See Murphy-Taylor v.

The joint employment doctrine is distinct from the “single
employer” or “integrated employer” doctrine, in which “a parent
company and its subsidiary can be considered a single employer
for purposes of Title VII liability.” Murphy-Taylor v. Hofmann,
968 F. Supp. 2d 693, 725 (D. Md. 2013) (citing Hukill v. Auto
Care, Inc., 192 F.3d 437, 442 (4th Cir. 1999), abrogated on
other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Here, Drive and ResourceMFG are clearly discrete entities, and
the parties do not argue that they could constitute an
integrated employer.

9

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Hofmann, 968 F. Supp. 2d 693, 725 (D. Md. 2013) (observing that
this Circuit “does not appear to have specifically considered
whether

to

apply

employment
circuits,

[the

joint

discrimination
moreover,

employment

context”). 4

have

considered

doctrine]

Many
the

of

in

our

the

sister

possibility

that

multiple entities could be employers of a plaintiff and adopted
the joint employment doctrine. 5

We now hold that the joint

employment doctrine is the law of this Circuit.
The joint employment doctrine is wholly consistent with our
precedent.
doctrine

We
in

have

cases

repeatedly

involving

used

analogous

the

joint

statutes

employment
to

resolve

similar difficulties in defining “employer” and “employee.”

See

Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 305-06 (4th
Cir. 2006) (Fair Labor Standards Act); Howard v. Malcolm, 852
F.2d

101,

102,

104-05

(4th

Cir.

1988)

(Migrant

and

Seasonal

4

See, e.g., Murphy-Taylor, 968 F. Supp. 2d at 725-28;
Simpson v. Greenville Transit Auth., No. 6:05-1087-HMH-BHH, 2006
WL 1148167, at *3-5 (D.S.C. Apr. 27, 2006); Williams v. Grimes
Aerospace Co., 988 F. Supp. 925, 934-36 (D.S.C. 1997); King v.
Dalton, 895 F. Supp. 831, 837-38 (E.D. Va. 1995); Magnuson v.
Peak Technical Servs., Inc., 808 F. Supp. 500, 507-10 (E.D. Va.
1992).
5

See, e.g., Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d
193, 197-98 (2d Cir. 2005); Graves, 117 F.3d at 727; EEOC v.
Skanska USA Bldg., Inc., 550 F. App’x 253, 256 (6th Cir. 2013);
Robinson v. Sappington, 351 F.3d 317, 332 n.9 & 337–39 (7th Cir.
2003); EEOC v. Pac. Mar. Ass’n, 351 F.3d 1270, 1277 (9th Cir.
2003); Bristol, 312 F.3d at 1218; Virgo, 30 F.3d at 1359-61.

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Agricultural Worker Protection Act); NLRB v. Jewell Smokeless
Coal Corp., 435 F.2d 1270, 1271 (4th Cir. 1970) (per curiam)
(National Labor Relations Act).

Nothing suggests a different

treatment is warranted here.
Second,
entities

the

doctrine’s

actually

emphasis

exercise

control

on

determining

over

an

which

employee

is

consistent with Supreme Court precedent interpreting Title VII’s
definitions.
element

of

The Supreme Court has held that “the common-law
control,”

drawn

from

the

law

of

agency,

“is

the

principal guidepost” to be followed when construing an analogous
claim

under

the

Gastroenterology
(2003).
on

Americans
Assocs.,

with

Disabilities

P.C.

v.

Wells,

538

Act.

Clackamas

U.S.

440,

448

Likewise, the Fourth Circuit has consistently focused

control,

especially

in

the

comparable

instance

where

the

status of the plaintiff as an employee or independent contractor
is at issue.
employment

See, e.g., Cilecek, 115 F.3d at 260.

doctrine

captures

instances

in

which

The joint
multiple

entities control an employee.
Third,

the

joint

employer

doctrine

serves

Title

VII’s

purpose of eliminating “discrimination in employment based on
race,

color,

religion,

sex,

or

national

origin.”

Lucido

v.

Cravath, Swaine & Moore, 425 F. Supp. 123, 126 (S.D.N.Y. 1977).
Title VII should be liberally construed in light of its remedial
purpose.

Hernandez v. Aldridge, 866 F.2d 800, 803 (5th Cir.
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1989), vacated on other grounds, Hernandez v. Rice, 494 U.S.
1013 (1990); see also Arnold v. Burger King Corp., 719 F.2d 63,
65 (4th Cir. 1983) (noting the “broad remedial purposes of Title
VII”).

As

the

Eighth

Circuit

construction

is

also

‘employer.’”

Baker v. Stuart Broad. Co., 560 F.2d 389, 391 (8th

to

be

has

given

noted,
to

“[s]uch

the

liberal

definition

of

Cir. 1977); see also Magnuson, 808 F. Supp. 500, 508 (E.D. Va.
1992) (noting the “broad, remedial purpose of Title VII which
militates against the adoption of a rigid rule strictly limiting
‘employer’ status under Title VII to an individual's direct or
single employer”).
Finally, the joint employment doctrine also recognizes the
reality of changes in modern employment, in which increasing
numbers of workers are employed by temporary staffing companies
that exercise little control over their day-to-day activities.
See Williams v. Grimes Aerospace Co., 988 F. Supp. 925, 933-34
(D.S.C.

1997)

(“While

the

phenomenon

of

temporary

employees

first gained momentum in the United States’ post-World War II
economy,

‘the

especially

temporary

since

the

help

industry

1980s.’”

has

recently

exploded,

(brackets

omitted)

(quoting

Development in the Law—Employment Discrimination: V. Temporary
Employment and the Imbalance of Power, 109 Harv. L. Rev. 1647,
1648

(1996)));

Lima

v.

Addeco,

634

F.

Supp.

2d

394,

400

(S.D.N.Y. 2009) (“The joint employer doctrine has been applied
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to temporary employment or staffing agencies and their client
entities.”).
The

joint

employment

doctrine

thus

prevents

those

who

effectively employ a worker from evading liability by hiding
behind another entity, such as a staffing agency.

Sibley Mem’l

Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973).

Given

Title VII’s remedial intent, employers should not be able to
“avoid Title VII by affixing a label to a person that does not
capture

the

substance

of

the

employment

relationship.”

Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 484
(8th Cir. 2000).
Consequently,

we

hold

that

multiple

entities

may

simultaneously be considered employers for the purposes of Title
VII.

IV.
We turn next to whether the court correctly applied the
joint employment doctrine in this case.

The object of the joint

employment doctrine is to determine whether a putative employer
“exercise[s]

significant

control

over

the

same

employees.”

Bristol, 312 F.3d at 1218 (quoting Graves, 117 F.3d at 727).
The question then is how to determine the extent to which an
employer “controls” an employee.

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Courts have formulated at least three tests that could be
used in the joint employment context: the economic realities
test, the control test, and the hybrid test.
aim

to

determine,

in

a

highly

fact-specific

All three tests
way,

whether

an

entity exercises control over an employee to the extent that it
should be liable under Title VII.

See Clackamas, 538 U.S. at

448 (stating in an ADA case that the “common-law element of
control is the principal guidepost that should be followed”).
The district court did not explicitly state which test it
used, but cited to some of our existing precedent in analogous
areas of the law.
inappropriate
employment

We find that the district court conducted an

analysis

doctrine

under

today.

our

articulation

Accordingly,

under

of

the

our

de

joint
novo

standard of review, we reverse the district court and remand for
further proceedings.

A.
We will briefly review the three tests, as developed by our
sister circuits, along with our own precedent, that could be
used for the joint employment doctrine under Title VII.

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Drive contends that this Circuit should adopt the “control”
test, which is drawn solely from basic principles of agency law. 6
Some other circuits and district courts in this Circuit use the
control test. 7

E.g., EEOC v. Skanska USA Bldg., Inc., 550 F.

App’x 253, 256 (6th Cir. 2013); Graves, 117 F.3d at 727-28; NLRB
v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d
Cir. 1982); Allen v. Tyco Elecs. Corp., 294 F. Supp. 2d 768, 774
(M.D.N.C. 2003); see also Haavistola v. Cmty. Fire Co. of Rising

6

Drive cites in support, among other authority, enforcement
guidance issued by the Equal Employment Opportunity Commission.
Enforcement Guidance: Application of EEO Laws to Contingent
Workers Placed by Temporary Employment Agencies and Other
Staffing Firms, EEOC Notice No. 915.002, 1997 WL 33159161 (Dec.
3, 1997). Drive concedes that the EEOC notice does not warrant
Chevron deference, although it may warrant Skidmore deference.
See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (noting
that courts can be persuaded by an agency’s rule, in the absence
of formal Chevron deference, when the agency has a “body of
experience and informed judgment to which courts and litigants
may properly resort for guidance”).
In any event, the EEOC
guidance document does not support Drive’s position.
In
defining an “employee” for the purposes of federal employment
discrimination laws, the guidance document contains a list of
considerations that very closely approximate the Spirides
factors (discussed below), suggesting that the EEOC looks to the
hybrid test, not to the control test.
7

Some cases have framed the analysis in terms of the
“master-servant”
or
“loaned-servant”
doctrine,
in
which
“employees placed in a work position through a temporary agency
are considered ‘loaned servants.’
. . .
[A]n employment
relationship is created between the special employer and the
temporary employee only when the special employer controls the
means and manner of the temporary employee’s work.” Allen, 294
F. Supp. 2d at 774 (quoting Mullis v. Mechs. & Farmers Bank, 994
F. Supp. 680, 684 (M.D.N.C. 1997)).

15

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Sun, Inc., 6 F.3d 211, 220 (4th Cir. 1993) (“The common-law
standard traditionally used when deciding whether an individual
can

claim

employee

status

emphasizes

the

importance

of

the

employer’s control over the individual.”).
Courts in the Third Circuit, for example, have used three
factors

to

determine

whether

an

entity

exercises

sufficient

control over an employee for Title VII liability:
1) authority to hire and fire employees,
promulgate work rules and assignments, and
set
conditions
of
employment,
including
compensation, benefits, and hours;
2)
day-to-day supervision
of
employees,
including employee discipline; and
3) control of employee records, including
payroll, insurance, taxes and the like.
Butterbaugh v. Chertoff, 479 F. Supp. 2d 485, 491 (W.D. Pa.
2007) (quoting Cella v. Villanova Univ., No. CIV.A.01-7181, 2003
WL 329147, at *7 (E.D. Pa. Feb. 12, 2003)); see also Plaso v.
IJKG, LLC, 553 F. App’x 199, 205 (3d Cir. 2014).
Circuit

looks

to

a

similar

set

of

factors,

The Sixth

looking

to

“an

entity’s ability to hire, fire or discipline employees, affect
their compensation and benefits, and direct and supervise their
performance.”

Skanska USA Bldg., Inc., 550 F. App’x at 256.

The control test is somewhat formal in that it tends to look to
the legal parameters of employment such as hiring and firing,
supervision

and

from

where

an

paychecks.

16

employee

receives

his

or

her

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Butler, by contrast, argues, that the economic realities
test applies. 8
it

focuses

This test differs from the control test in that

on

“degree

of

economic

dependence

of

alleged

employees on the business with which they are connected that
indicates employee status.” 9

EEOC v. Zippo Mfg. Co., 713 F.2d

32, 37 (3d Cir. 1983) (brackets and ellipsis omitted) (quoting
Usery

v.

Pilgrim

Equip.

Co.,

527

F.2d

1308,

1311

(5th

Cir.

1976)); see also Hopkins v. Cornerstone Am., 545 F.3d 338, 343
(5th Cir. 2008) (applying the test in an FLSA case).

In other

words, the economic realities test focuses less on the legal
parameters of employment, but more on the entity (or entities)

8

The economic realities test originated in a different
context in a Supreme Court case from the 1940s, in which the
Court was asked to resolve whether a defendant was an employee
or independent contractor for the purpose of determining Social
Security taxes.
See Bartels v. Birmingham, 332 U.S. 126, 130
(1947) (“[I]n the application of social legislation employees
are those who as a matter of economic reality are dependent upon
the business to which they render service.”).
9

Drive cites one of our decisions, Garrett v. Phillips
Mills, Inc., for the proposition that this Circuit has already
rejected the economic realities test.
721 F.2d 979 (4th Cir.
1983).
In some respects, this characterization is accurate,
because Garrett did in fact reject the economic realities test.
But it is not helpful to Drive’s case because the Court in
Garrett clearly adopted the hybrid test, discussed infra, and
rejected the individual control test.
Id. at 981-92 (stating
that the Court was “convinced that whether an individual is an
employee in the ADEA context is properly determined by analyzing
the facts of each employment relationship under a standard that
incorporates both the common law test derived from principles of
agency and the so-called ‘economic realities’ test”).

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on

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which

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the

employee

irrespective

of

who

relies

is

Pg: 18 of 27

on

actually

determining work status.

for

work

writing

and
the

remuneration—
paychecks

and

An entity that is a mere front might

be an employer under the control test, but it would not be under
the economic realities test.
This Circuit has applied the economic realities test in the
context

of

the

Migrant

and

Seasonal

Agricultural

Protection Act and the Fair Labor Standards Act.
852

F.2d

at

104-05

(deciding

whether

there

Worker

See Howard,
was

joint

employment); Schultz, 466 F.3d at 304-05 (deciding whether the
plaintiff

was

an

employee

or

independent

contractor).

In

Schultz, for example, we said that the joint employment question
must “take into account the real economic relationship between
the employer who uses and benefits from the services of workers
and

the

employer.

party

that

hires

or

assigns

the

workers

to

that

The ultimate determination of joint employment must

be based upon the circumstances of the whole activity.” 10 466

10

Drive correctly notes, however, that the FLSA uses a
different definition of “employee” such that the statute is not
directly analogous to Title VII.
Darden, 503 U.S. at 326
(noting that the FLSA’s definition “stretches the meaning of
‘employee’ to cover some parties who might not qualify as such
under
a
strict
application
of
traditional
agency
law
principles”).
As such, FLSA cases employing the economic
realities
test—and
indeed
any
test—are
not
particularly
transferrable to Title VII cases.

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F.3d at 306 (citations, brackets, and internal quotation marks
omitted).
Finally,
argued

in

below

favor

and

of

consistently

adopted

hybrid

combines

test

control tests.
the

hybrid

on

the
it

appeal,

hybrid
in

neither

test,

analogous

aspects

of

the

Butler

even

Title

nor

though
VII

economic

Drive

we

have

cases.

The

realities

and

In Garrett v. Phillips Mills, Inc., we adopted

test

in

an

ADEA

independent

contractor

case,

describing the test as “analyzing the facts of each employment
relationship under a standard that incorporates both the common
law test derived from principles of agency and the so-called
‘economic realities’ test.”

721 F.2d 979, 981 (4th Cir. 1983).

We

applied

noted

that

“the

test

in

Title

VII

cases

was

appropriate for resolving employee status issues in ADEA cases.”
Id.
The Garrett court adopted a list of factors (the “Spirides
factors”) to evaluate along with the entity’s degree of control:
(1) the kind of occupation, with reference
to whether the work usually is done under
the direction of a supervisor or is done by
a specialist without supervision;
(2) the skill required in the particular
occupation;
(3) whether the “employer” or the individual
in question furnishes the equipment used and
the place of work;
(4) the length of time during which the
individual has worked;
(5) the method of payment, whether by time
or by the job;
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(6) the manner in which the work
relationship is terminated; i.e., by one or
both parties, with or without notice and
explanation;
(7) whether annual leave is afforded;
(8) whether the work is an integral part of
the business of the “employer”;
(9) whether the worker accumulates
retirement benefits;
(10) whether the “employer” pays social
security taxes; and
(11) the intention of the parties.

Id. at 982 (quoting Spirides v. Reinhardt, 613 F.2d 826, 832
(D.C. Cir. 1979)).
most

important

dispositive.”

Under the hybrid test, “control is still the

factor

to

be

considered,

but

it

is

not

Id.

A decade later, we implicitly adopted the hybrid test in a
Title

VII

case

to

determine

whether

independent contractor or an employee.
219-20.

a

plaintiff

was

an

Haavistola, 6 F.3d at

Referencing Garrett, we remarked that “the operative

language in ADEA is identical to the operative language in Title
VII,

so

the

analysis

interchangeable.”

utilized

Id. at 219 n.2.

under

either

act

is

We further described “a

standard that incorporates both the common law test derived from
principles

of

agency

and

the

so-called

‘economic

realities’

test,” which asks whether employees “as a matter of economic
reality are dependent upon the business to which they render
service.”

Id. at 220 (citations omitted).

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Subsequently, in Cilecek, we re-emphasized the importance
of the traditional common law of agency, while citing the hybrid
test used in Garrett and Haavistola approvingly.
260.

Cilecek

precedent.

did

not

purport

to

overturn

115 F.3d at
our

existing

Indeed, we cited a Supreme Court case, Nationwide

Mutual Insurance Co. v. Darden, that emphasized the importance
of

the

common

law

of

agency,

while

using

factors

similar to our decisions in Garrett and Haavistola. 11
(citing

Darden,

503

U.S.

at

322-23);

see

also

markedly

Id. at 259
id.

at

260

(calling the Spirides factors “similar” to the ones in Darden).
We also modified the Darden factors to make them more applicable
to the specific industry context present in Cilecek.

Id. at

260-61; see also Bender v. Suburban Hosp., 998 F. Supp. 631, 635
(D. Md. 1998) (observing that the hybrid test was modified “to
make it more applicable to the hospital context”).
Guided by these decisions, we conclude that the hybrid test
best captures the fact-specific nature of Title VII cases, such
as the one before us.

Cf. Haavistola, 6 F.3d at 222 (“Title VII

11

In Darden, the Supreme Court reversed a decision from
this Circuit, which held, drawing from the purpose of ERISA,
that an “ERISA plaintiff can qualify as an ‘employee’ simply by
showing” that the plaintiff had a reasonable expectation of
benefits, relied on this expectation, and lacked the bargaining
power to contract out of forfeiture provisions.
Id. at 321.
Instead, the Supreme Court referred to a list of factors from a
copyright case. That list of factors is virtually the same as
the ones in Spirides.

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claims

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involved

district

court

Pg: 22 of 27

fact-intensive
was

not

determinations

equipped

to

rule

on

for
the

which
basis

the
of

a

summary judgment record alone.”); Hunt v. State of Mo., Dep’t of
Corr.,

297

F.3d

735,

employer-employee

741

(8th

Cir.

relationship

2002)

is

a

(finding

that

an

“fact-intensive

consideration of all aspects of the working relationship between
the parties” (citation and internal quotation marks omitted)).
The hybrid test also allows for the broadest possible set of
considerations in making a determination of which entity is an
employer.

Moreover,

it

best

captures

the

reality

of

modern

employment in which “control” of an employee may be shared by
two or more entities.

The hybrid test correctly bridges the

control test and the economic realities test.
Accordingly, we adopt the hybrid test.

We find, however,

that our previous statements of the hybrid test, involving the
analogous but legally distinct independent contractor context,
do

not

adequately

employment.

the

unique

circumstances

of

joint

The factors used in Spirides and Cilecek include

considerations
context.

capture

that

are

irrelevant

to

the

joint

employment

Drawing on our existing precedent and joint employment

cases in other circuits, we now articulate a new set of factors
for

courts

in

this

Circuit

to

use

in

assessing

whether

individual is jointly employed by two or more entities:
(1) authority to hire and fire the individual;
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(2) day-to-day supervision of the individual, including
employee discipline;
(3) whether the putative employer furnishes the equipment
used and the place of work;
(4) possession of and responsibility over the individual's
employment records, including payroll, insurance, and
taxes;
(5) the length of time during which the individual has
worked for the putative employer;
(6) whether the putative employer provides the individual
with formal or informal training;
(7) whether the individual’s duties are akin to a regular
employee's duties;
(8) whether the individual is assigned solely to the
putative employer; and
(9) whether the individual and putative employer intended
to enter into an employment relationship. 12

We note that none of these factors are dispositive and that the
common-law element of control remains the “principal guidepost”
in

the

analysis.

Indeed,

consistent

with

our

opinion

in

Cilecek, courts can modify the factors to the specific industry
context.
arising

See id. at 261 (refashioning factors for a controversy
in

a

hospital

setting);

Darden,

503

U.S.

at

323-324

(prefacing its list of factors with “[a]mong the other factors
relevant to this inquiry are”).

12

We pause to note that the ninth factor regarding the
subjective intentions of the parties ordinarily will be of
minimal consequence in the joint employment analysis.
For
example, the fact that an employee signs a form disclaiming an
employment relationship will not defeat a finding of joint
employment. Similarly, an individual’s failure to appreciate an
entity as an employer should not be dispositive.
Instead, the
intent of the parties should be part of the overall factspecific inquiry into the putative employee’s circumstances.

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Three factors are the most important. The first factor,
which entity or entities have the power to hire and fire the
putative employee, is important to determining ultimate control.
The second factor, to what extent the employee is supervised, is
useful for determining the day-to-day, practical control of the
employee.

The third factor, where and how the work takes place,

is valuable for determining how similar the work functions are
compared to those of an ordinary employee.
joint

employment

factors,

however,

“no

When applying the
one

factor

is

determinative, and the consideration of factors must relate to
the particular relationship under consideration.”
F.3d at 260.
principal

Cilecek, 115

Courts should be mindful that control remains the

guidepost

for

determining

whether

multiple

entities

can be a plaintiff’s joint employers.

B.
We next consider, under our de novo standard of review,
whether the district court correctly applied the hybrid test in
this case.

The district court did not explicitly state which

test it was using, but the language in the opinion emphasized
the importance of the “common law of agency.”

J.A. 427-28.

The

district court, however, also cited Cilecek and referred to the
Darden factors, which, as explained above, suggests a broader
set of considerations than what the somewhat narrow control test
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J.A. 432 (citing Farlow v. Wachovia Bank of North

Carolina, N.A., 259 F.3d 309, 314 (4th Cir. 2001)).
Under the set of factors we state above, the district court
inappropriately discounted several considerations that militate
in

favor

of

finding

employers of Butler.

that

Drive

and

ResourceMFG

are

joint

Most importantly, Drive exhibited a high

degree of control over the terms of Butler’s employment (factor
1).

The uncontradicted evidence shows that a Drive employee

sent

an

e-mail

to

Roxanne

Lombard,

an

ResourceMFG

employee,

directing that Butler be “add[ed] to the list for replacement.”
J.A. 383.

ResourceMFG then, after a delay, terminated Butler.

Although ResourceMFG was the entity that formally fired Butler,
Drive had effective control over Butler’s employment.
Sanders,

the

ResourceMFG

branch

manager

in

Charlie

Greenville,

South

Carolina, could not recall an instance when Drive requested an
ResourceMFG employee to be disciplined or terminated and it was
not done.

J.A. 330-31.

Second,
(factor

2).

handled

the

Drive

employees

Indeed,

supervised

both

Drive--specifically

day-to-day

supervision

of

sets

Green

Butler

of

and

on

workers
Thomas--

the

factory

floor.
Third,

Drive

and

ResourceMFG

employees

worked

“side

by

side,” performed the same tasks, and used the same equipment
(factor

3).

J.A.

332.

Although
25

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wore

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uniform on the factory floor, there was little or no effective
difference

between

the

work

performed

by

the

two

sets

of

employees.
Fourth, Butler’s labor was not tangential or peripheral to
Drive.

Instead, she performed the same tasks as Drive employees

and produced goods that were Drive’s core business

(factor 7).

The hybrid test, as we have articulated it, specifically
aims

to

pierce

the

legal

formalities

of

an

employment

relationship to determine the loci of effective control over an
employee,

while

not

discounting

those

formalities

entirely.

Otherwise, an employer who exercises actual control could avoid
Title

VII

although

liability
ResourceMFG

by

terminated

her,

and

hiding

disbursed
handled

behind

another

Butler’s

employee

entity.

paychecks,

discipline,

Here,

officially
it

did

not

prevent Drive from having a substantial degree of control over
the

circumstances

of

Butler’s

employment.

Accordingly,

we

reverse the district court and hold, as a matter of law, that
Drive and ResourceMFG are Butler’s joint employers. 13

13

The outcome of this case would have been the same even if
we adopted the list of factors in Cilecek or Spirides for use in
this case. The factors we outlined overlap greatly with Cilecek
and Spirides, and the three factors that we stated are most
important to the joint employment context are present in Cilecek
and Spirides as well.

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C.
The district court concluded that Drive was not Butler’s
employer and could therefore not be held liable for Butler’s
hostile work environment and retaliation claims.
reverse

the

district

court’s

finding

that

Drive

Because we
was

not

an

employer of Butler, the district must now consider the merits of
Butler’s

claims.

Consequently,

we

remand

those

claims

for

consideration by the district court in the first instance.

V.
The judgment of the district court is
REVERSED AND REMANDED.

27