The issue of who is the employer is a constant source of headaches for attorneys, especially in employment cases. In most employment cases involving discrimination a complaint must be first filed with the Equal Employment Opportunity Commission (EEOC) or the state agency, which here in Texas is the Texas Workforce Commission-Civil Rights Division (TWCCRD). The problem is for whom did the employee actually work?

This problem is presented almost every time I have a case. Usually, it is unclear and very murky. The employer uses a common name, such as “Universal Widget,” when the actual name of the company may be “Universal Widget, Incorporated” or “Universal Widget LLC.” This issue was discussed in the recent federal case in the Fifth Circuit, entitled “Equal Employment Opportunity Commission v. Simbaki, Ltd. dba Berryhill Baja Grill & Cantina.” The Fifth Circuit discussed the area of the difficulty in naming the true employer and the exceptions to the named-party rule that requires the exact employer be named. The trial court ruled that a person who was not represented by an attorney before the EEOC would be able to use the exceptions while a person with an attorney would not. The Fifth Circuit reversed this ruling holding that a person with an attorney could also benefit by the exceptions to the requirement to name the exact employer.

Finding the exact employer is difficult, even for an attorney. Sometimes employers use a trade name but the real employer is another corporation with a different name. Oftentimes, the paycheck to the employee is issued by a payroll service or another company that owns several companies, one of which actually employees the injured employee.

In my practice, I often have to name several companies hoping we hit the correct one until a lawsuit is filed and the true employer can surface. My motto is like the saying in the Old West regarding who is the guilty party: “shoot them all and let God sort it out” or a more precise rendition in a suit: “sue them all and let the Court sort it out.”

The Texas rules of civil procedure has a rule number 28 which states that: “Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the cout’s own motion the true name may be substituted.” However, in order for a party to take advantage of Rule 28 there must be a showing that the named entity is in fact doing business under that common name. KM-Timbercreek, LLC v Harris Cty. Appr.Dist., 312 S.W.3d 722 (Tex.App.-Houston 2013). I usually look at the sign the entity is using or the name they use in the telephone book or website. The use of this name will usually be enough to get whatever entity is behind it utilizing it in a business (at least in Texas state court). The issue of whether this would be enough in a TWCCRD or EEOC complaint has not been ruled upon. The best practice is to use the common name and then also include the other more specific company names; however, this can get expensive in a suit because each party increases the filing and service fees.