                                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,
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.




                               2
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



                                               3
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.



                                            4
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.



                                              5
       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.



                                            6
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

                                        7
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

                                                8
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.



                                         9
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.



                                             10
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.

                                            11
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

                                                12
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.



                                        13
      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.




                                          14
     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)).



                               15
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.


                                          16
        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”).



                                         17
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.



                                                  18
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;

                                             19
             (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).



                                              20
       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.



                                          21
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;

                                             22
      (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”).



      12We 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 fact-
specific inquiry into the putative employee’s circumstances.



                                     23
        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

                                    24
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

                                             25
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.



                                                26
                                      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.




                                      27
