United States: Long Arm Of Browning-Ferris? Hotel Franchisor Named As "Joint Employer" In Alleged Sexual Servitude Suit

Last Updated: October 30 2015
Article by Alexander S. Radus

A hotel assistant manager who allegedly coerced housekeepers into sexual "servitude" is now defending himself in federal court, along with his employer TMI Hospitality Incorporated ("TMI"). But they're not alone: the complaint also names franchisor Marriott International Incorporated ("Marriott") as a joint employer. Invoking the NLRB's recent decision in Browning-Ferris Industries, 362 NLRB No 186 (August 27, 2015), the complaint argues that Marriott's exercise of "direct, indirect or potential control over essential working conditions" at the hotel makes it a joint employer with TMI.

TMI, which owns and operates a franchised Fairfield Inn by Marriott, hired the plaintiff in May 2013, and she was twice promoted during her tenure. Marriott owns the Fairfield Inn brand and is named as TMI's franchisor. The plaintiff, a single African-American mother of three, alleged that the hotel's assistant manager engaged in a pattern and practice of sexual harassment of economically vulnerable women of color, threatening to fire them if they did not engage in sexual acts with him. The assistant manager, John Doe #1, so identified "due to the extremely scandalous nature" of the alleged conduct, supervised the plaintiff during her entire employment at TMI.

The complaint alleges that John Doe #1 coerced the plaintiff into sexual intercourse and other sexual acts on hundreds of occasions, threatening to fire her if she did not comply. The complaint explains that the plaintiff dared not defy him as she was not in an economic position to lose her job. However, in April 2015, the plaintiff refused to submit any longer to the sexual harassment. In July 2015, TMI fired her. Plaintiff alleges TMI's reasons were false and pre-textual and that John Doe #1 played a causal role in her termination.

Due to her termination, the plaintiff could not continue making payments on her car and had to abandon her house and a majority of her belongings. She and her children are now separated; the kids are staying with their father while she looks for work and a stable living situation.

The complaint seeks actual and punitive damages from John Doe #1, TMI and Marriott under multiple theories: discrimination, retaliation, battery, assault, negligent infliction of emotional distress, intentional infliction of emotional distress, wrongful termination, and negligent hiring and supervision. TMI and Marriott are directly charged as joint employers for wrongful termination and negligent hiring and supervision. For the remaining counts, the plaintiff alleges that TMI and Marriott are liable under the doctrine of respondeat superior, which makes employers liable for certain acts of employees done within the scope of employment. Specifically, the plaintiff argues that TMI and Marriott breached their duties to carefully hire and supervise John Doe #1 and to protect their vulnerable female housekeepers.

The charges against franchisor Marriott stem from the NLRB's August 27, 2015 decision in Browning-Ferris, which held that the waste management firm Browning-Ferris Industries was a joint employer with its subcontractor staffing agency. Browning-Ferris restated the NLRB's joint employer traditional standard, finding that "two or more entities are joint employers . . . if they share or codetermine those matters governing the essential terms and conditions of employment." Browning-Ferris Industries, 362 NLRB No. 186 at 15. Entities may be joint employers even where their control over employees is indirect or potential and unexercised. Essential terms of employment include hiring, firing, supervision, direction, wages and hours, controlling scheduling, assigning work and determining the manner and method of work. Notably, although the plaintiff asserts that Marriott is liable as a joint employer due to its control over essential working conditions, the complaint does not explain what essential working conditions Marriott controls, nor how Marriott exercises its control. The complaint only alleges that Marriott and TMI are parties to a franchise agreement.

It remains to be seen if the plaintiff can establish that Marriott is a joint employer with TMI. Whether Marriott's control (or potential control) over John Doe #1 was sufficient to govern the essential terms of his employment will be hotly contested. We will follow this case and keep readers apprised of developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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