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Company's actions support joint employer status.

Byline: Virginia Lawyers Weekly

Where a company sponsored the plaintiff's visa, paid his salary and claimed him on federal and state employment forms, it can be deemed a joint employer for the purposes of the man's plaintiff's Americans with Disabilities Act and Family and Medical Leave Act suit.


Plaintiff, Patrick Voellmar, filed this action on Nov. 28, 2017, alleging violations of the Americans with Disabilities Act and the Family and Medical Leave Act against defendants I.M.S., Inc. and ITO El Paso. In his complaint, plaintiff alleged I.M.S., Inc. and ITO El Paso acted as joint employers, and therefore claims against both defendants were appropriate.

On March 23, 2018, ITO El Paso moved to dismiss for failure to state a claim, arguing it was not a joint employer with I.M.S., Inc. and that it employs fewer than 10 people, which prevents it from being a statutory employer under both the ADA and the FMLA. The court ordered a 60-day period of limited discovery on the issue of joint employment.

The parties conducted discovery and this action is presently before the court on ITO El Paso's renewed motion to dismiss for failure to state a claim


The 4th U.S. Circuit Court of Appeals has adopted a nine-factor test to be applied in determining joint employment. None of the factors are dispositive.

ITO El Paso argues that it cannot be deemed a joint employer with I.M.S., Inc. because the three factors the Fourth Circuit has deemed most important cut in its favor. First, I.M.S., Inc. both hired and fired plaintiff. Second, ITO El Paso did not supervise plaintiff on a day-to-day basis since plaintiff was based in I.M.S., Inc.'s office and was subject to the control of I.M.S., Inc. employees in that office. Third, as plaintiff was based in the I.M.S., Inc. office, ITO El Paso did not furnish the equipment plaintiff used nor his place of work.

Despite the importance of the first three factors, "the common-law element of control remains the 'principal guidepost.'" Here, ITO El Paso sponsored plaintiff's visa application and claimed plaintiff as an employee on multiple state and federal reporting forms over a number of years. ITO El Paso paid plaintiff's salary. Plaintiff signed an arbitration agreement with ITO El Paso and an acknowledgement that ITO El Paso did not offer worker's compensation insurance. Finally, ITO El Paso's Vice President after expressing dismay that plaintiff did not come to him before filing the complaint with the EEOC, "which I actually expect as your employer" spearheaded I.M.S., Inc. and ITO El Paso's response to plaintiff's EEOC complaint. These are not the actions of a disinterested third party. These are the actions of an employer that retains a significant amount of control over its employee.

Taking all of plaintiff's factual allegations as true, and drawing all reasonable inferences in his favor, it is clear plaintiff has sufficiently pled that I.M.S., Inc. and ITO El Paso are joint employers for the purposes of plaintiff's ADA and FMLA claims. Therefore, ITO El Paso's motion to dismiss is denied.

Voellmar v. I.M.S., Inc., Case No. 17-cv-1353, Sept. 18, 2018. EDVA at Alexandria (O'Grady). VLW 018-3-398. 7 pp.

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Title Annotation:ITO El Paso, Voellmar v. I.M.S., Inc., U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Oct 28, 2018
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