General Contractor not “Indirect Employer”
of Dismissed Construction Worker
Plaintiff had worked for sub of sub of GC
On a construction site at the Milwaukee city hall in 2008 JP Cullen, the general contractor, subcontracted work to Eugene Matthews, Inc., that in turn subcontracted work to Union Contracting, Inc., that in turn employed an African-American worker, Walter Love, as a foreman. Union fired him after he had an altercation at the site with another individual (also Blakc) employed in another trade at the site. Love sued for race discrimination and, since a Cullen superintendent had thrown him off the site, named Cullen as an “employer” that violated the discrimination laws.
In affirming the trial court’s entry of summary judgment in favor of Cullen, the Seventh Circuit Court of Appeals ruled that the general contractor was not an indirect employer since it exercised insufficient control over Love. Applying a five-factor test, the appeals court found that the economic realities and the “financial parameters” of the employment arrangement were against Love.
The court applied the five factors, the first being the most important:
1. the extent to which the putative employer controlled Love: the fact that Cullen required union workers was not control of Love. The fact that Cullen’s superintendent expelled him from the jobsite did not control his continued employment by Union.
2. the training by the putative employer: toolbox meetings for safety training by Cullen was not enough.
3. the extent to which Cullen was responsible for the costs of Union’s operation: Cullen’s immediate subcontractor, EMI, was responsible for these costs.
4. the extent to which Cullen was responsible for Love’s wages and benefits: Love was paid by Union
5. the extent to which Love had a job commitment or the parties expected a commitment: There was no evidence that Cullen expected him to continue working on Cullen projects, and vice versa.
Walter Love v. JP Cullen & Sons, Inc., __F3rd__, No. 13-3291 (7th Cir. March 2015).