The Serrano/Ducksworth defense.

If you know what I’m referring to, you don’t need to read any further. But if you don’t, well, please read on.

A great many employment lawsuits include claims against alleged “joint employers” – for instance, a temporary staffing company and the client to which the employee was assigned, or related corporate entities that share similar names (and, perhaps, shared services, which is another issue).

And in many of those lawsuits, plaintiffs and their counsel have simply lumped the two companies together and have alleged that “defendants” engaged in unlawful conduct, without making any effort to distinguish between the two defendants, much less their alleged conduct.

Regularly, plaintiffs and their counsel allege that it doesn’t matter which company did what because, as “joint employers,” they are vicariously liable for each other’s conduct. And sometimes inexperienced defense counsel concede that point.

But, in most circumstances, they are very, very wrong. 

Simply put, the California courts have explained that “joint employers” are not vicariously liable for each other’s conduct. Each is only liable for its own conduct. 

And if you don’t believe that, take a look at the following cases:

1. Serrano v. Aerotek, Inc. (2018) 21 Cal.App.5th 773, 782–785, disapproved on another ground in Donohue v. AMN Servs., LLC (2021) 11 Cal.5th 58, 77;
2. Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532, 539–540 [holding that a joint employer could not be liable for harassment and discrimination absent a showing of actual involvement], overruled on other grounds in Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932;
3. Grande v. Eisenhower Medical Center (2020) 44 Cal.App.5th 1147, 1160 [“Serrano teaches that joint employers are not vicariously liable for each other’s Labor Code violations, but liable for their own conduct.”], affirmed on other grounds in Grande v. Eisenhower Medical Center (2022) 13 Cal.5th 313;
4. Gomez v. Elite Labor Services Weekly, Ltd. (N.D. Cal. June 24, 2022) 2022 WL 2290620, p. *2 [relying on Serrano and holding that, “even assuming [the staffing company defendants] were joint employers with [their client], [the staffing company defendants] cannot be held vicariously liable for a violation by [their client]”];
5. Hinds v. FedEx Ground Package System, Inc. (N.D. Cal. Apr. 25, 2022) 2022 WL 1212016, p. *3 [“The Court considered Serrano in connection with the motion for class certification and still is not persuaded that Serrano stands for the proposition that an employee might recover a “windfall” from a joint employer ‘even though a direct employer actually complied with the Labor Code and with Wage Order 9.’”];
6. Overpeck v. FedEx Corporation (N.D. Cal. May 19, 2020) 2020 WL 2542030, p. *5 [“The holding in Serrano informs the analysis here. As the Serrano court observed, a joint employer who satisfies its duty under Labor Code § 226.7 is not vicariously liable for the breaches of a joint employer.”]

It’s the Serrano/Ducksworth defense. And it likely applies in most cases where plaintiffs and their counsel bring claims against “joint employers.”