Ninth Circuit: Joint Employers Are Liable for Non-Workplace Matters Under Title VII for H-2A Workers

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, or Northern Mariana Islands Employees with H-2A Visas

EFFECTIVE

February 6, 2019

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In EEOC v. Global Horizons, Inc., the Ninth Circuit stated that because employers of H-2A workers are required to provide housing, meals and transportation as “material terms and conditions” of their employment, these employers can be liable for such non-workplace matters under Title VII, even if the employers contract with a third party to provide those work benefits. There, two orchard growers hired Global Horizons as their staffing firm to recruit agricultural workers using H-2A visa authorizations. Two of the workers filed a discrimination claim against the growers and Global Horizons, claiming poor working conditions, substandard living conditions, and unsafe transportation based on their race and national origin.

The court stated that although the growers paid the staffing service to provide these workers with housing, meals, and transportation, under the H-2A regulations the growers met the definition of “employer” and bore the ultimate responsibility over these matters. Moreover, the court stated joint employer status for purposes of Title VII protections must be determined using the common-law agency test, rather than the “economic realities” test. Specifically, the court focused on the growers’ ability and ultimate authority to control the non-workplace conditions, even if the power was never actually exercised, and the allegations that the growers knew or should have known about the alleged discriminatory conduct.

Action Items

  1. Review working relationships with third-party vendors to assess potential joint-employer liability.
  2. Review reporting procedures for hired workers to comply with visa sponsorship obligations.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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