PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1348

BRENDA BUTLER,

Plaintiff - Appellant,

v.

DRIVE AUTOMOTIVE INDUSTRIES OF AMERICA, INCORPORATED, d/b/a 

Magna Drive Automotive,

Defendant – Appellee,

and

EMPLOYBRIDGE OF DALLAS INCORPORATED, d/b/a ResourceMFG; 

STAFFING SOLUTIONS SOUTHEAST INCORPORATED, d/b/a 

ResourceMFG,

Defendants.

Appeal from the United States District Court for the District of 

South Carolina, at Greenville. Jacquelyn D. Austin, Magistrate

Judge. (6:12-cv-03608-JDA)

Argued: January 29, 2015 Decided: July 15, 2015

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Judge Floyd wrote 

the opinion, in which Judge Keenan and Judge Harris joined.

ARGUED: Jeffrey Parker Dunlaevy, STEPHENSON & MURPHY, LLC, 

Greenville, South Carolina, for Appellant. Stephanie E. Lewis, 
2

JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee. 

ON BRIEF: Brian P. Murphy, BRIAN MURPHY LAW FIRM, PC, 

Greenville, South Carolina, for Appellant. Wendy L. Furhang, 

JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.
3

FLOYD, Circuit Judge:

In this Title VII employment discrimination action, Brenda 

Butler seeks to recover for sexual harassment she allegedly 

experienced while working at a Drive Automotive Industries

(Drive) factory. In the proceeding below, Drive argued that 

Butler was actually employed by a temporary staffing agency, 

ResourceMFG, and therefore Drive was not an “employer” subject 

to Title VII liability. Although the district court 

acknowledged that in some instances an employee can have 

multiple “employers” for Title VII purposes, it concluded that 

in this case ResourceMFG was Butler’s sole employer. 

Accordingly, the district court granted summary judgment to 

Drive on Butler’s claims. 

Like the district court, and several of our sister 

circuits, we agree that Title VII provides for joint employer 

liability. We further conclude that the so-called “hybrid” 

test, which considers both the common law of agency and the 

economic realities of employment, is the correct means to apply 

the joint employment doctrine to the facts of a case. The 

district court did not explicitly use the “hybrid” test in its 

opinion. Under our de novo standard of review, we articulate 

the hybrid test for the joint employment context and apply it to 

the facts of this case, concluding that Drive was indeed 
4

Butler’s employer. Accordingly, we reverse and remand for 

consideration of Butler’s Title VII claims on the merits.

I.

Appellant Brenda Butler was hired by ResourceMFG,1 a 

temporary employment agency, to work at Drive Automotive 

Industries in Piedmont, South Carolina. Drive manufactures 

doors, fenders, and other parts for automotive companies. The 

company hires some employees directly and employs others through 

temporary employment agencies.

Drive and ResourceMFG each exercised control over various 

aspects of Butler’s employment. For example, Butler wore 

ResourceMFG’s uniform, was paid by ResourceMFG, and parked in a 

special ResourceMFG lot. ResourceMFG also had ultimate 

responsibility for issues related to discipline and termination. 

Drive, however, determined Butler’s work schedule and arranged 

portions of Butler’s training. Drive employees supervised 

Butler while she worked on the factory floor. Butler said she 

was told by ResourceMFG that she worked for “both” Drive and 

ResourceMFG. J.A. 36-37 (“They always told me that both of them 

 1 Employbridge of Dallas Inc. and Staffing Solutions 

Southeast Inc. do business as ResourceMFG. 
5

w[ere] our employers. . . . [W]e w[ere] considered to be 

working for both.”).

Butler claims that one of her Drive supervisors, John 

Green, verbally and physically harassed her throughout her time 

at Drive. Specifically, Butler alleges that Green made repeated 

comments about Butler’s physical features, such as “You sure do 

have a big old ass”; “I wish my girlfriend had a big old ass 

like yours”; “Boy, I love women with big old asses”; and calling 

her a “big booty Judy.” J.A. 94, 103, 132. Green also rubbed 

his crotch against Butler’s buttocks. J.A. 98-100. Butler 

reported Green’s conduct to ResourceMFG’s on-site 

representative, Ryan Roberson, and to Green’s supervisor at 

Drive, Lisa Gardner Thomas. According to Butler, however,

neither took any action to curb the harassment. 

The harassment culminated on December 19, 2010, when Green 

directed Butler to work on a particular machine called “the 

laser.” Butler refused, saying she was tired from working 

overtime the night before. Green said that his supervisor had 

said “hell no.” J.A. 86. Green continued, “You have to run it. 

If you can’t fucking run it, take your ass home. . . . [Y]our 

assignment has ended.” Id. He also called her “big booty Judy” 

again. Id. When Butler objected to Green’s language, he 

informed her that she was a temp and could be easily fired.
6

When Butler informed Thomas of the encounter, Thomas asked

another supervisor at Drive that Butler be terminated. J.A. 

383. The request was then sent to ResourceMFG. A few days 

later, Green called Butler and implied that he could save her 

job by performing sexual favors for him. Butler refused. A 

ResourceMFG supervisor then called her to tell her she had been 

terminated from Drive.

In November 2012, Butler filed suit against both Drive and 

ResourceMFG in South Carolina state court. After Drive timely 

removed the case to federal court, the parties agreed to dismiss 

the case against ResourceMFG, leaving Drive as the sole 

remaining defendant. In April 2013, the district court granted 

Drive’s motion for summary judgment,2 finding that Drive did not 

exercise sufficient control over Butler’s employment such that 

it could be liable as her employer under Title VII. Butler now 

appeals the district court’s grant of summary judgment.

II.

Pursuant to 28 U.S.C. § 636(c)(3), we have jurisdiction of 

this appeal from the judgment of the magistrate judge. We 

review the district court’s grant of summary judgment de novo, 

 2 The parties consented to the jurisdiction of a magistrate 

judge. For the sake of simplicity, we will refer to the 

magistrate judge as the district court.
7

drawing “reasonable inferences in the light most favorable to 

the non-moving party.” Dulaney v. Packaging Corp. of Am., 673 

F.3d 323, 330 (4th Cir. 2012). We also review de novo questions 

of statutory interpretation—in this case, the proper 

construction of “employer” in Title VII. Stone v. 

Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009). 

Summary judgment is proper “if the movant shows that there 

is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). To overcome a motion for summary judgment, however, the 

nonmoving party “‘may not rely merely on allegations or denials 

in its own pleading’ but must ‘set out specific facts showing a

genuine issue for trial.’” News & Observer Publ’g Co. v. 

Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) 

(quoting Fed. R. Civ. P. 56(e)).

III.

An entity can be held liable in a Title VII action only if 

it is an “employer” of the complainant. Title VII of the Civil 

Rights Act of 1964 defines an “employer” as a “person engaged in 

an industry affecting commerce who has fifteen or more employees 

for each working day in each of twenty or more calendar weeks in 

the current or preceding calendar year, and any agent of such a 

person.” 42 U.S.C. § 2000e(b). In turn, an “employee” is “an 
8

individual employed by an employer.” Id. § 2000e(f). As the 

Supreme Court has noted, definitions of “employer” and 

“employee” in federal law are often circular and “explain[] 

nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 

(1992).

The parties do not dispute that ResourceMFG employed 

Butler. The dispositive question on appeal is whether Drive 

also employed Butler for Title VII purposes. In answering this 

question, we first must consider the threshold issue of whether

an employee can have multiple “employers” under Title VII. Our 

review of this question of law is de novo. Cilecek v. Inova 

Health Sys. Servs., 115 F.3d 256, 261 (4th Cir. 1997) (citing 

MacMullen v. S.C. Elec. & Gas Co., 312 F.2d 662, 670 (4th Cir.

1963)). The district court accepted the possibility that both 

entities could in theory be Butler’s “employer” for Title VII 

purposes pursuant to the joint employment doctrine. As set 

forth below, we conclude that the joint employment doctrine is 

an appropriate construction of Title VII, and so affirm the 

district court on that issue.

A.

Other courts have found that two parties can be considered 

joint employers and therefore both be liable under Title VII if 

they “share or co-determine those matters governing the 
9

essential terms and conditions of employment.” Bristol v. Bd. 

of Cnty. Comm’rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc)

(quoting Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 

1360 (11th Cir. 1994)). In other words, “courts look to whether 

both entities ‘exercise significant control over the same 

employees.’” Id. (quoting Graves v. Lowery, 117 F.3d 723, 727 

(3d Cir. 1997)). “The basis for the finding that two companies 

are ‘joint employers’ is that ‘one employer while contracting in 

good faith with an otherwise independent company, has retained 

for itself sufficient control of the terms and conditions of 

employment of the employees who are employed by the other 

employer.’”3 Torres-Negrón v. Merck & Co., 488 F.3d 34, 40 n.6

(1st Cir. 2007) (quoting Rivas v. Federación de Asociaciones 

Pecuarias de P.R., 929 F.2d 814, 820 n.17 (1st Cir. 1991)).

Although this Circuit has never expressly adopted the joint 

employment doctrine in the Title VII context, district courts in 

this Circuit have frequently applied it. See Murphy-Taylor v. 

 3 The joint employment doctrine is distinct from the “single 

employer” or “integrated employer” doctrine, in which “a parent 

company and its subsidiary can be considered a single employer 

for purposes of Title VII liability.” Murphy-Taylor v. Hofmann, 

968 F. Supp. 2d 693, 725 (D. Md. 2013) (citing Hukill v. Auto 

Care, Inc., 192 F.3d 437, 442 (4th Cir. 1999), abrogated on 

other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). 

Here, Drive and ResourceMFG are clearly discrete entities, and 

the parties do not argue that they could constitute an 

integrated employer.
10

Hofmann, 968 F. Supp. 2d 693, 725 (D. Md. 2013) (observing that 

this Circuit “does not appear to have specifically considered 

whether to apply [the joint employment doctrine] in the 

employment discrimination context”).4 Many of our sister 

circuits, moreover, have considered the possibility that 

multiple entities could be employers of a plaintiff and adopted 

the joint employment doctrine.5 We now hold that the joint 

employment doctrine is the law of this Circuit.

The joint employment doctrine is wholly consistent with our

precedent. We have repeatedly used the joint employment 

doctrine in cases involving analogous statutes to resolve 

similar difficulties in defining “employer” and “employee.” See

Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 305-06 (4th 

Cir. 2006) (Fair Labor Standards Act); Howard v. Malcolm, 852 

F.2d 101, 102, 104-05 (4th Cir. 1988) (Migrant and Seasonal 

 4 See, e.g., Murphy-Taylor, 968 F. Supp. 2d at 725-28; 

Simpson v. Greenville Transit Auth., No. 6:05-1087-HMH-BHH, 2006 

WL 1148167, at *3-5 (D.S.C. Apr. 27, 2006); Williams v. Grimes 

Aerospace Co., 988 F. Supp. 925, 934-36 (D.S.C. 1997); King v. 

Dalton, 895 F. Supp. 831, 837-38 (E.D. Va. 1995); Magnuson v. 

Peak Technical Servs., Inc., 808 F. Supp. 500, 507-10 (E.D. Va. 

1992).

5 See, e.g., Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 

193, 197-98 (2d Cir. 2005); Graves, 117 F.3d at 727; EEOC v. 

Skanska USA Bldg., Inc., 550 F. App’x 253, 256 (6th Cir. 2013); 

Robinson v. Sappington, 351 F.3d 317, 332 n.9 & 337–39 (7th Cir. 

2003); EEOC v. Pac. Mar. Ass’n, 351 F.3d 1270, 1277 (9th Cir. 

2003); Bristol, 312 F.3d at 1218; Virgo, 30 F.3d at 1359-61.
11

Agricultural Worker Protection Act); NLRB v. Jewell Smokeless 

Coal Corp., 435 F.2d 1270, 1271 (4th Cir. 1970) (per curiam)

(National Labor Relations Act). Nothing suggests a different 

treatment is warranted here.

Second, the doctrine’s emphasis on determining which 

entities actually exercise control over an employee is 

consistent with Supreme Court precedent interpreting Title VII’s 

definitions. The Supreme Court has held that “the common-law 

element of control,” drawn from the law of agency, “is the 

principal guidepost” to be followed when construing an analogous 

claim under the Americans with Disabilities Act. Clackamas 

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 

(2003). Likewise, the Fourth Circuit has consistently focused

on control, especially in the comparable instance where the 

status of the plaintiff as an employee or independent contractor 

is at issue. See, e.g., Cilecek, 115 F.3d at 260. The joint 

employment doctrine captures instances in which multiple 

entities control an employee.

Third, the joint employer doctrine serves Title VII’s 

purpose of eliminating “discrimination in employment based on 

race, color, religion, sex, or national origin.” Lucido v. 

Cravath, Swaine & Moore, 425 F. Supp. 123, 126 (S.D.N.Y. 1977). 

Title VII should be liberally construed in light of its remedial 

purpose. Hernandez v. Aldridge, 866 F.2d 800, 803 (5th Cir. 
12

1989), vacated on other grounds, Hernandez v. Rice, 494 U.S. 

1013 (1990); see also Arnold v. Burger King Corp., 719 F.2d 63, 

65 (4th Cir. 1983) (noting the “broad remedial purposes of Title 

VII”). As the Eighth Circuit has noted, “[s]uch liberal 

construction is also to be given to the definition of 

‘employer.’” Baker v. Stuart Broad. Co., 560 F.2d 389, 391 (8th 

Cir. 1977); see also Magnuson, 808 F. Supp. 500, 508 (E.D. Va. 

1992) (noting the “broad, remedial purpose of Title VII which 

militates against the adoption of a rigid rule strictly limiting 

‘employer’ status under Title VII to an individual's direct or 

single employer”).

Finally, the joint employment doctrine also recognizes the 

reality of changes in modern employment, in which increasing 

numbers of workers are employed by temporary staffing companies 

that exercise little control over their day-to-day activities. 

See Williams v. Grimes Aerospace Co., 988 F. Supp. 925, 933-34

(D.S.C. 1997) (“While the phenomenon of temporary employees 

first gained momentum in the United States’ post-World War II 

economy, ‘the temporary help industry has recently exploded, 

especially since the 1980s.’” (brackets omitted) (quoting 

Development in the Law—Employment Discrimination: V. Temporary 

Employment and the Imbalance of Power, 109 Harv. L. Rev. 1647, 

1648 (1996))); Lima v. Addeco, 634 F. Supp. 2d 394, 400 

(S.D.N.Y. 2009) (“The joint employer doctrine has been applied 
13

to temporary employment or staffing agencies and their client 

entities.”).

The joint employment doctrine thus prevents those who 

effectively employ a worker from evading liability by hiding 

behind another entity, such as a staffing agency. Sibley Mem’l

Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973). Given 

Title VII’s remedial intent, employers should not be able to 

“avoid Title VII by affixing a label to a person that does not 

capture the substance of the employment relationship.” 

Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 484 

(8th Cir. 2000).

Consequently, we hold that multiple entities may 

simultaneously be considered employers for the purposes of Title 

VII.

IV.

We turn next to whether the court correctly applied the 

joint employment doctrine in this case. The object of the joint 

employment doctrine is to determine whether a putative employer 

“exercise[s] significant control over the same employees.” 

Bristol, 312 F.3d at 1218 (quoting Graves, 117 F.3d at 727). 

The question then is how to determine the extent to which an 

employer “controls” an employee. 
14

Courts have formulated at least three tests that could be 

used in the joint employment context: the economic realities 

test, the control test, and the hybrid test. All three tests 

aim to determine, in a highly fact-specific way, whether an 

entity exercises control over an employee to the extent that it 

should be liable under Title VII. See Clackamas, 538 U.S. at 

448 (stating in an ADA case that the “common-law element of 

control is the principal guidepost that should be followed”).

The district court did not explicitly state which test it 

used, but cited to some of our existing precedent in analogous 

areas of the law. We find that the district court conducted an 

inappropriate analysis under our articulation of the joint 

employment doctrine today. Accordingly, under our de novo 

standard of review, we reverse the district court and remand for 

further proceedings.

A.

We will briefly review the three tests, as developed by our 

sister circuits, along with our own precedent, that could be 

used for the joint employment doctrine under Title VII.
15

Drive contends that this Circuit should adopt the “control”

test, which is drawn solely from basic principles of agency law.6 

Some other circuits and district courts in this Circuit use the 

control test.7 E.g., EEOC v. Skanska USA Bldg., Inc., 550 F. 

App’x 253, 256 (6th Cir. 2013); Graves, 117 F.3d at 727-28; NLRB 

v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d 

Cir. 1982); Allen v. Tyco Elecs. Corp., 294 F. Supp. 2d 768, 774 

(M.D.N.C. 2003); see also Haavistola v. Cmty. Fire Co. of Rising 

 6 Drive cites in support, among other authority, enforcement 

guidance issued by the Equal Employment Opportunity Commission. 

Enforcement Guidance: Application of EEO Laws to Contingent 

Workers Placed by Temporary Employment Agencies and Other 

Staffing Firms, EEOC Notice No. 915.002, 1997 WL 33159161 (Dec. 

3, 1997). Drive concedes that the EEOC notice does not warrant 

Chevron deference, although it may warrant Skidmore deference. 

See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (noting 

that courts can be persuaded by an agency’s rule, in the absence 

of formal Chevron deference, when the agency has a “body of 

experience and informed judgment to which courts and litigants 

may properly resort for guidance”). In any event, the EEOC 

guidance document does not support Drive’s position. In 

defining an “employee” for the purposes of federal employment 

discrimination laws, the guidance document contains a list of 

considerations that very closely approximate the Spirides

factors (discussed below), suggesting that the EEOC looks to the 

hybrid test, not to the control test. 

7 Some cases have framed the analysis in terms of the 

“master-servant” or “loaned-servant” doctrine, in which 

“employees placed in a work position through a temporary agency 

are considered ‘loaned servants.’ . . . [A]n employment 

relationship is created between the special employer and the 

temporary employee only when the special employer controls the 

means and manner of the temporary employee’s work.” Allen, 294 

F. Supp. 2d at 774 (quoting Mullis v. Mechs. & Farmers Bank, 994 

F. Supp. 680, 684 (M.D.N.C. 1997)). 
16

Sun, Inc., 6 F.3d 211, 220 (4th Cir. 1993) (“The common-law 

standard traditionally used when deciding whether an individual 

can claim employee status emphasizes the importance of the 

employer’s control over the individual.”).

Courts in the Third Circuit, for example, have used three 

factors to determine whether an entity exercises sufficient 

control over an employee for Title VII liability:

1) authority to hire and fire employees, 

promulgate work rules and assignments, and 

set conditions of employment, including 

compensation, benefits, and hours; 

2) day-to-day supervision of employees, 

including employee discipline; and

3) control of employee records, including 

payroll, insurance, taxes and the like.

Butterbaugh v. Chertoff, 479 F. Supp. 2d 485, 491 (W.D. Pa.

2007) (quoting Cella v. Villanova Univ., No. CIV.A.01-7181, 2003 

WL 329147, at *7 (E.D. Pa. Feb. 12, 2003)); see also Plaso v. 

IJKG, LLC, 553 F. App’x 199, 205 (3d Cir. 2014). The Sixth 

Circuit looks to a similar set of factors, looking to “an 

entity’s ability to hire, fire or discipline employees, affect 

their compensation and benefits, and direct and supervise their 

performance.” Skanska USA Bldg., Inc., 550 F. App’x at 256.

The control test is somewhat formal in that it tends to look to 

the legal parameters of employment such as hiring and firing, 

supervision and from where an employee receives his or her 

paychecks.
17

Butler, by contrast, argues, that the economic realities 

test applies.8 This test differs from the control test in that 

it focuses on “degree of economic dependence of alleged 

employees on the business with which they are connected that 

indicates employee status.”9 EEOC v. Zippo Mfg. Co., 713 F.2d 

32, 37 (3d Cir. 1983) (brackets and ellipsis omitted) (quoting

Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 

1976)); see also Hopkins v. Cornerstone Am., 545 F.3d 338, 343 

(5th Cir. 2008) (applying the test in an FLSA case). In other 

words, the economic realities test focuses less on the legal 

parameters of employment, but more on the entity (or entities)

 8 The economic realities test originated in a different 

context in a Supreme Court case from the 1940s, in which the 

Court was asked to resolve whether a defendant was an employee 

or independent contractor for the purpose of determining Social 

Security taxes. See Bartels v. Birmingham, 332 U.S. 126, 130 

(1947) (“[I]n the application of social legislation employees 

are those who as a matter of economic reality are dependent upon 

the business to which they render service.”).

9 Drive cites one of our decisions, Garrett v. Phillips 

Mills, Inc., for the proposition that this Circuit has already 

rejected the economic realities test. 721 F.2d 979 (4th Cir. 

1983). In some respects, this characterization is accurate, 

because Garrett did in fact reject the economic realities test. 

But it is not helpful to Drive’s case because the Court in

Garrett clearly adopted the hybrid test, discussed infra, and 

rejected the individual control test. Id. at 981-92 (stating 

that the Court was “convinced that whether an individual is an 

employee in the ADEA context is properly determined by analyzing 

the facts of each employment relationship under a standard that 

incorporates both the common law test derived from principles of 

agency and the so-called ‘economic realities’ test”).
18

on which the employee relies on for work and remuneration—

irrespective of who is actually writing the paychecks and 

determining work status. An entity that is a mere front might 

be an employer under the control test, but it would not be under 

the economic realities test.

This Circuit has applied the economic realities test in the 

context of the Migrant and Seasonal Agricultural Worker 

Protection Act and the Fair Labor Standards Act. See Howard, 

852 F.2d at 104-05 (deciding whether there was joint 

employment); Schultz, 466 F.3d at 304-05 (deciding whether the 

plaintiff was an employee or independent contractor). In 

Schultz, for example, we said that the joint employment question 

must “take into account the real economic relationship between 

the employer who uses and benefits from the services of workers 

and the party that hires or assigns the workers to that 

employer. The ultimate determination of joint employment must 

be based upon the circumstances of the whole activity.”10 466 

 10 Drive correctly notes, however, that the FLSA uses a 

different definition of “employee” such that the statute is not 

directly analogous to Title VII. Darden, 503 U.S. at 326 

(noting that the FLSA’s definition “stretches the meaning of 

‘employee’ to cover some parties who might not qualify as such 

under a strict application of traditional agency law 

principles”). As such, FLSA cases employing the economic 

realities test—and indeed any test—are not particularly 

transferrable to Title VII cases.
19

F.3d at 306 (citations, brackets, and internal quotation marks 

omitted).

Finally, below and on appeal, neither Butler nor Drive 

argued in favor of the hybrid test, even though we have 

consistently adopted it in analogous Title VII cases. The 

hybrid test combines aspects of the economic realities and 

control tests. In Garrett v. Phillips Mills, Inc., we adopted 

the hybrid test in an ADEA independent contractor case, 

describing the test as “analyzing the facts of each employment 

relationship under a standard that incorporates both the common 

law test derived from principles of agency and the so-called 

‘economic realities’ test.” 721 F.2d 979, 981 (4th Cir. 1983).

We noted that “the test applied in Title VII cases was 

appropriate for resolving employee status issues in ADEA cases.”

Id.

The Garrett court adopted a list of factors (the “Spirides

factors”) to evaluate along with the entity’s degree of control:

(1) the kind of occupation, with reference 

to whether the work usually is done under 

the direction of a supervisor or is done by 

a specialist without supervision; 

(2) the skill required in the particular 

occupation; 

(3) whether the “employer” or the individual 

in question furnishes the equipment used and 

the place of work; 

(4) the length of time during which the 

individual has worked; 

(5) the method of payment, whether by time 

or by the job; 
20

(6) the manner in which the work 

relationship is terminated; i.e., by one or 

both parties, with or without notice and 

explanation; 

(7) whether annual leave is afforded; 

(8) whether the work is an integral part of 

the business of the “employer”; 

(9) whether the worker accumulates 

retirement benefits; 

(10) whether the “employer” pays social 

security taxes; and 

(11) the intention of the parties.

Id. at 982 (quoting Spirides v. Reinhardt, 613 F.2d 826, 832 

(D.C. Cir. 1979)). Under the hybrid test, “control is still the 

most important factor to be considered, but it is not 

dispositive.” Id.

A decade later, we implicitly adopted the hybrid test in a 

Title VII case to determine whether a plaintiff was an 

independent contractor or an employee. Haavistola, 6 F.3d at 

219-20. Referencing Garrett, we remarked that “the operative 

language in ADEA is identical to the operative language in Title 

VII, so the analysis utilized under either act is 

interchangeable.” Id. at 219 n.2. We further described “a 

standard that incorporates both the common law test derived from 

principles of agency and the so-called ‘economic realities’ 

test,” which asks whether employees “as a matter of economic 

reality are dependent upon the business to which they render 

service.” Id. at 220 (citations omitted).
21

Subsequently, in Cilecek, we re-emphasized the importance 

of the traditional common law of agency, while citing the hybrid 

test used in Garrett and Haavistola approvingly. 115 F.3d at 

260. Cilecek did not purport to overturn our existing 

precedent. Indeed, we cited a Supreme Court case, Nationwide 

Mutual Insurance Co. v. Darden, that emphasized the importance 

of the common law of agency, while using factors markedly 

similar to our decisions in Garrett and Haavistola.11 Id. at 259 

(citing Darden, 503 U.S. at 322-23); see also id. at 260 

(calling the Spirides factors “similar” to the ones in Darden). 

We also modified the Darden factors to make them more applicable 

to the specific industry context present in Cilecek. Id. at 

260-61; see also Bender v. Suburban Hosp., 998 F. Supp. 631, 635 

(D. Md. 1998) (observing that the hybrid test was modified “to 

make it more applicable to the hospital context”).

Guided by these decisions, we conclude that the hybrid test

best captures the fact-specific nature of Title VII cases, such

as the one before us. Cf. Haavistola, 6 F.3d at 222 (“Title VII 

 11 In Darden, the Supreme Court reversed a decision from 

this Circuit, which held, drawing from the purpose of ERISA, 

that an “ERISA plaintiff can qualify as an ‘employee’ simply by 

showing” that the plaintiff had a reasonable expectation of 

benefits, relied on this expectation, and lacked the bargaining 

power to contract out of forfeiture provisions. Id. at 321. 

Instead, the Supreme Court referred to a list of factors from a 

copyright case. That list of factors is virtually the same as 

the ones in Spirides.
22

claims involved fact-intensive determinations for which the 

district court was not equipped to rule on the basis of a 

summary judgment record alone.”); Hunt v. State of Mo., Dep’t of 

Corr., 297 F.3d 735, 741 (8th Cir. 2002) (finding that an 

employer-employee relationship is a “fact-intensive 

consideration of all aspects of the working relationship between 

the parties” (citation and internal quotation marks omitted)).

The hybrid test also allows for the broadest possible set of 

considerations in making a determination of which entity is an 

employer. Moreover, it best captures the reality of modern 

employment in which “control” of an employee may be shared by

two or more entities. The hybrid test correctly bridges the

control test and the economic realities test. 

Accordingly, we adopt the hybrid test. We find, however, 

that our previous statements of the hybrid test, involving the 

analogous but legally distinct independent contractor context, 

do not adequately capture the unique circumstances of joint 

employment. The factors used in Spirides and Cilecek include 

considerations that are irrelevant to the joint employment 

context. Drawing on our existing precedent and joint employment 

cases in other circuits, we now articulate a new set of factors 

for courts in this Circuit to use in assessing whether an 

individual is jointly employed by two or more entities:

(1) authority to hire and fire the individual; 
23

(2) day-to-day supervision of the individual, including 

employee discipline;

(3) whether the putative employer furnishes the equipment 

used and the place of work; 

(4) possession of and responsibility over the individual's 

employment records, including payroll, insurance, and 

taxes; 

(5) the length of time during which the individual has 

worked for the putative employer;

(6) whether the putative employer provides the individual 

with formal or informal training;

(7) whether the individual’s duties are akin to a regular 

employee's duties;

(8) whether the individual is assigned solely to the 

putative employer; and

(9) whether the individual and putative employer intended 

to enter into an employment relationship.12

We note that none of these factors are dispositive and that the 

common-law element of control remains the “principal guidepost” 

in the analysis. Indeed, consistent with our opinion in 

Cilecek, courts can modify the factors to the specific industry 

context. See id. at 261 (refashioning factors for a controversy 

arising in a hospital setting); Darden, 503 U.S. at 323-324 

(prefacing its list of factors with “[a]mong the other factors 

relevant to this inquiry are”).

 12 We pause to note that the ninth factor regarding the 

subjective intentions of the parties ordinarily will be of 

minimal consequence in the joint employment analysis. For 

example, the fact that an employee signs a form disclaiming an 

employment relationship will not defeat a finding of joint 

employment. Similarly, an individual’s failure to appreciate an 

entity as an employer should not be dispositive. Instead, the 

intent of the parties should be part of the overall factspecific inquiry into the putative employee’s circumstances.
24

Three factors are the most important. The first factor, 

which entity or entities have the power to hire and fire the 

putative employee, is important to determining ultimate control. 

The second factor, to what extent the employee is supervised, is 

useful for determining the day-to-day, practical control of the 

employee. The third factor, where and how the work takes place, 

is valuable for determining how similar the work functions are 

compared to those of an ordinary employee. When applying the 

joint employment factors, however, “no one factor is 

determinative, and the consideration of factors must relate to 

the particular relationship under consideration.” Cilecek, 115 

F.3d at 260. Courts should be mindful that control remains the 

principal guidepost for determining whether multiple entities 

can be a plaintiff’s joint employers.

B.

We next consider, under our de novo standard of review,

whether the district court correctly applied the hybrid test in 

this case. The district court did not explicitly state which 

test it was using, but the language in the opinion emphasized 

the importance of the “common law of agency.” J.A. 427-28. The 

district court, however, also cited Cilecek and referred to the 

Darden factors, which, as explained above, suggests a broader 

set of considerations than what the somewhat narrow control test 
25

would entail. J.A. 432 (citing Farlow v. Wachovia Bank of North 

Carolina, N.A., 259 F.3d 309, 314 (4th Cir. 2001)). 

Under the set of factors we state above, the district court 

inappropriately discounted several considerations that militate 

in favor of finding that Drive and ResourceMFG are joint 

employers of Butler. Most importantly, Drive exhibited a high 

degree of control over the terms of Butler’s employment (factor 

1). The uncontradicted evidence shows that a Drive employee

sent an e-mail to Roxanne Lombard, an ResourceMFG employee, 

directing that Butler be “add[ed] to the list for replacement.” 

J.A. 383. ResourceMFG then, after a delay, terminated Butler. 

Although ResourceMFG was the entity that formally fired Butler, 

Drive had effective control over Butler’s employment. Charlie 

Sanders, the ResourceMFG branch manager in Greenville, South 

Carolina, could not recall an instance when Drive requested an 

ResourceMFG employee to be disciplined or terminated and it was 

not done. J.A. 330-31. 

Second, Drive employees supervised both sets of workers 

(factor 2). Indeed, Drive--specifically Green and Thomas--

handled the day-to-day supervision of Butler on the factory 

floor.

Third, Drive and ResourceMFG employees worked “side by 

side,” performed the same tasks, and used the same equipment 

(factor 3). J.A. 332. Although Butler wore a ResourceMFG 
26

uniform on the factory floor, there was little or no effective 

difference between the work performed by the two sets of 

employees. 

Fourth, Butler’s labor was not tangential or peripheral to 

Drive. Instead, she performed the same tasks as Drive employees 

and produced goods that were Drive’s core business (factor 7).

The hybrid test, as we have articulated it, specifically 

aims to pierce the legal formalities of an employment 

relationship to determine the loci of effective control over an 

employee, while not discounting those formalities entirely. 

Otherwise, an employer who exercises actual control could avoid

Title VII liability by hiding behind another entity. Here, 

although ResourceMFG disbursed Butler’s paychecks, officially 

terminated her, and handled employee discipline, it did not 

prevent Drive from having a substantial degree of control over 

the circumstances of Butler’s employment. Accordingly, we 

reverse the district court and hold, as a matter of law, that 

Drive and ResourceMFG are Butler’s joint employers.13

 13 The outcome of this case would have been the same even if 

we adopted the list of factors in Cilecek or Spirides for use in 

this case. The factors we outlined overlap greatly with Cilecek

and Spirides, and the three factors that we stated are most 

important to the joint employment context are present in Cilecek

and Spirides as well.
27

C.

The district court concluded that Drive was not Butler’s 

employer and could therefore not be held liable for Butler’s 

hostile work environment and retaliation claims. Because we 

reverse the district court’s finding that Drive was not an 

employer of Butler, the district must now consider the merits of 

Butler’s claims. Consequently, we remand those claims for 

consideration by the district court in the first instance.

V.

The judgment of the district court is

REVERSED AND REMANDED.