September 18, 2020

Volume X, Number 262

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Joint Employer Rule Struck Down

Last week, a federal judge in the Southern District of New York struck down most of a U.S. Department of Labor rule that limited when multiple businesses may be liable to the same worker under federal wage law, the so-called “joint employer rule.” The decision undoes one of the Trump Administration key reforms of federal labor policy and is the latest chapter in the ongoing struggle over the reach of the Fair Labor Standards Act into critical areas of the economy such as franchising and businesses that utilize contract labor or staffing agencies.

The DOL issued the new rule in January of this year imposing a four-factor test for determining whether two or more businesses may be deemed as the employer for the same worker and liable under the Fair Labor Standards Act. The four-factor test limited joint employer liability to situations where the alleged employer actually exhibited control over an alleged employment relationship through things like hiring and firing, setting terms of employment, or directing the work at issue. Under the DOL’s rule, an alleged employer’s reservation of the right to take such actions is not sufficient.

A coalition of U.S. states challenged the new DOL rule. The court held that the DOL’s final rule violated the Administrative Procedures Act, a federal law designed to govern rule-making procedures. The court held, among other things, that the DOL failed to adequately justify why it was departing from prior guidelines on the same issue.

The Court vacated or struck down the rule’s application to "vertical" employment relationships in which workers for a staffing company, franchisees, or other intermediary are contracted to another entity. The Court, however, preserved the portion of the rule dealing with "horizontal" relationships. This includes situations in which a two separate, but “associated,” businesses “jointly” employ the same worker.

The ruling is the latest in a hard-fought battle over the scope of liability under federal employment law. The Obama administration sought to broaden the more employers accountable to workers. The DOL had most recently in 2014 and 2016 issued bulletins directing agency investigators to focus on the “economic realities” of the alleged employer/employee relationship. 

The business community, conversely, has urged the current administration to roll back such restrictions. The Court’s decision is a blow to that effort. The DOL rescinded the 2014 and 2016 bulletins after President Donald Trump took office in 2017. Then, in 2019, the Department proposed the first update to formal joint employment regulations in decades. 

The DOL or any number of business groups which had intervened in the suit could appeal the ruling who see such rulings and similar government regulation as attacks on their business models. Until the litigation is resolved, potential employers in “vertical” arrangements, e.g. staffing agencies, as described above seeking to avoid potential joint employer liability should look to the various and sometimes, conflicting court decisions in their respective jurisdictions for guidance.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 259


About this Author

Peter Loh, Foley Lardner Law Firm, Dallas, Intellectual Property and Litigation Law Attorney

Peter Loh is a litigation lawyer with trial and appellate litigation experience representing plaintiffs and defendants in a wide variety of complex commercial disputes throughout Texas and beyond in the retail, tech, finance, and other sectors. Peter has been lead counsel in many successful cases involving breach of contract, fraud, trade secret litigation, negligence, violations of the Fair and Accurate Credit Transaction Act, patent and copyright infringement, and other complex issues.

He has handled cases in state and...

Carrie Hoffmann, Foley Lardner Law Firm, Dallas, Labor and Employment, Litigation Law Attorney

Carrie Hoffman represents and counsels major employers nationwide in all areas of labor and employment law across a wide range of industries, including retail. Carrie is highly regarded for her experience with wage and hour issues, as well as employment discrimination and retaliation claims. She regularly reviews and drafts employment agreements – such as covenants not to compete – and advises clients on a wide variety of labor and employment issues, such as:

  • Workplace safety

  • Workplace harassment

  • Union avoidance and election campaigns

  • Leaves of absence

  • Hiring, termination and severance policies and procedures

  • Litigation avoidance

Carrie has defended clients throughout the United States in major employment litigation, at both the federal and state court level, including class and collective actions. She also represents employers in investigations and audits by agencies such as the Equal Employment Opportunity Commission, Texas Workforce Commission, the National Labor Relations Board and the Department of Labor.

Clients have a high regard for Carrie’s knowledge of wage and hour laws, as well as her practical approach to problem solving and direct manner.