A New York federal district court judge has struck down significant portions of the U.S. Department of Labor’s (“DOL”) joint employer rule, which went into effect earlier this year.  As a result of this ruling, certain companies may be more likely to be deemed joint employers and exposed to liability for wage and hour violations under the Fair Labor Standards Act (“FLSA”).

As we described here, in March 2020, a final rule issued by DOL went into effect implementing a four-factor test for determining whether more than one entity may be considered an individual’s employer under the FLSA.  The new test shifted the existing rule’s focus on the “economic realities” of the alleged employer/employee relationship to a narrower inquiry regarding whether the alleged employer actually exercised control over the alleged employment relationship.

The District Court for the Southern District of New York has now held that DOL’s final joint employer rule violated the Administrative Procedures Act for two reasons.  First, the court found that the rule contradicted the text of the FLSA because it ignored relevant concepts defined in the statute, such as the definitions of “employ” and “employee,” and that DOL had erroneously applied different standards for “primary” and “joint” employment when no such distinction exists in the FLSA itself.  Second, the court found that DOL’s reasoning for the rule change was arbitrary, capricious, and not supported by adequate evidence.

As a result, the court struck down the portion of the rule that related to “vertical” employment relationships, in which an employing entity uses some intermediary employer, such as a staffing agency, to provide labor.  The court kept in place the new rule’s non-substantive revisions for finding joint employment in a “horizontal” employment relationship, defined as a scenario in which “one employer employs a worker for one set of hours in a workweek, and another employer employs the same worker for a separate set of hours in the same workweek; the jobs and the hours worked for each employer are separate, but if the employers are joint employers, both employers are jointly and severally liable for all of the hours the employee worked for them in the workweek.”

It is possible that business groups that had intervened in the litigation, as well as DOL itself, will appeal the ruling.  In the meantime, the joint employer rule for vertical employment relationships reverts to the prior standard, which involved a wider range of potentially relevant factors, and which has been subject to significant interpretation both by DOL and through case law.  Employers who have relied on the four-factor test to assess their potential liability as a joint employer should consider reevaluating those assessments in light of this ruling.

Employers should also keep other joint employer liability standards in mind.  For example, in April 2020, the National Labor Relations Board reinstated a joint employer rule that had been previously applied for several decades before it was broadened in 2015.  Additionally, the Equal Employment Opportunity Commission has signaled that it intends to clarify its own standards for determining joint employment status under various federal anti-discrimination laws.  State laws may also vary in their approach to assessing joint employer status.  To manage these risks, employers should continue to carefully monitor their relationships and contracts with other entities to understand how their interactions with various workers may create joint employer liability under applicable labor and employment laws.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with…

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

As a senior member of Covington’s Institutional Culture and Social Responsibility Practice Group, Carolyn has co-led significant investigations into workplace culture, DEI issues, and reports of sexual misconduct and workplace harassment.

As an employment lawyer with over two decades of experience, Carolyn focuses on a wide range of compliance and regulatory matters for employers, including:

  • Conducting audits regarding employee classification and pay equity
  • Advising on employment issues arising in corporate transactions
  • Strategic counseling on a wide range of issues including discrimination and harassment, wages and hours, worker classification, workplace accommodations and leave management, performance management and termination decisions, workplace violence, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies
  • Drafting employment contracts and offer letters, separation agreements, NDAs, and other employment agreements
  • Advising on employee privacy matters, including under the California Consumer Privacy Act
  • Providing guidance on use of AI in the workplace and development of related policies
  • Leading anti-harassment and other workplace-related trainings, for employees, executives, and boards

Carolyn also works frequently with the firm’s white collar, privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups.

Photo of Tom Plotkin Tom Plotkin

Tom Plotkin advises companies on a broad range of ESG issues with a focus on social responsibility, including business and human rights, equity and civil rights, and external engagement and brand reputation.

As a member of Covington’s Business and Human Rights practice, Tom…

Tom Plotkin advises companies on a broad range of ESG issues with a focus on social responsibility, including business and human rights, equity and civil rights, and external engagement and brand reputation.

As a member of Covington’s Business and Human Rights practice, Tom advises clients on all aspects of the corporate responsibility to respect human rights, including issues related to supply chain due diligence and responsible sourcing, downstream product use and human rights impacts, and strategies for integrating human rights oversight into broader compliance programs.

Tom is also a member of Covington’s Institutional Culture and Social Responsibility practice, where he assists companies in evaluating and managing the legal, business, and reputational risks associated with social impacts of business practices. Tom’s work in this area focuses on civil rights and diversity, equity, and inclusion.

As a member of Covington’s ESG practice, Tom draws on his social responsibility portfolio to assist companies in bridging internal practices and external engagement strategies. Tom assists with public ESG reporting, responding to shareholder ESG proposals, and external stakeholder engagement.

Tom is also a member of Covington’s Employment practice, where he advises on a range of domestic and international employment law issues.