Connor v. Pier Sixty, LLC
23 Misc. 3d 435 (2009)
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Rule of Law:
Whether a company is an "employer" of a worker supplied by a temporary agency is a fact-specific inquiry based on the degree of control the company exercises over the worker's performance. A complaint alleging an employment relationship based on such control is sufficient to survive a pre-answer motion to dismiss.
Facts:
- Plaintiffs worked as servers at events hosted by the defendants, including Pier Sixty, LLC.
- The plaintiffs were assigned to work at these events by a temporary service agency.
- The defendants imposed a mandatory gratuity charge on their customers for the events at which the plaintiffs worked.
- The plaintiffs allege they never received any portion of this mandatory gratuity charge.
- Defendant Pier Sixty required temporary workers like the plaintiffs to attend a four-week training session.
- Pier Sixty supervised the plaintiffs' work, required them to comply with its dress code, and provided them with a uniform jacket.
Procedural Posture:
- Plaintiffs filed a putative class action lawsuit against defendants Pier Sixty, LLC, AK Pier Sixty, LLC, and Abigail Kirsch in a New York trial court.
- The complaint alleged a violation of Labor Law § 196-d for retaining gratuities intended for employees.
- Defendants filed a pre-answer motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7).
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Issue:
Does a complaint alleging that a company is an 'employer' of temporary workers under Labor Law § 196-d fail to state a cause of action, as a matter of law, simply because the workers were provided by a temporary agency?
Opinions:
Majority - Marylin G. Diamond, J.
No. A complaint does not fail to state a cause of action merely because the workers were supplied by a temporary agency; the determination of an employment relationship requires a factual assessment of control that cannot typically be resolved on a pre-answer motion to dismiss. The court reasoned that the critical inquiry is the degree of control the purported employer exercises over the worker's performance. Unlike the precedent in Bynog v Cipriani Group, which was decided on summary judgment after discovery, this case is at the motion-to-dismiss stage. Here, the plaintiffs alleged sufficient facts suggesting control—such as mandatory training, direct supervision, and a required uniform—to proceed to discovery. Therefore, the complaint adequately states a cause of action by alleging that the defendants were the plaintiffs' employer.
Analysis:
This decision is significant because it prevents companies from using temporary staffing agencies as a shield to automatically defeat employment-related claims at the earliest stage of litigation. It reaffirms that the 'degree of control' test is paramount and fact-intensive, thus ensuring that temporary or 'gig economy' workers have the opportunity to use the discovery process to prove an employment relationship exists. This ruling makes it more difficult for companies to dismiss such lawsuits early and reinforces statutory protections, like those concerning gratuities, for a broader range of workers.
