Addressing the current hot-button issue of whether two businesses should be treated as a joint employer under the Fair Labor Standards Act (FLSA), a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit has adopted a new and expanded two-pronged test, supplanting the more traditional joint employment criteria applied by the appeals court in previous FLSA cases.
The Fourth Circuit’s new test, articulated in Salinas et al. v. Commercial Interiors, Inc., No. 15-01915 (Jan. 25, 2017) petition for rehearing denied (Feb. 22, 2017), mirrors the expansive — and highly controversial — joint employment view taken by the National Labor Relations Board (NLRB) in Browning-Ferris Industries of California, Inc., which is currently on appeal before the D.C. Circuit Court of Appeals.
On the same day it issued its decision in Salinas, the panel applied its new expanded joint employment test in another FLSA case, Hall v. DIRECTV, LLC, No. 15-1857 (Jan. 25, 2017), finding that satellite installation technicians were jointly employed by DIRECTV and a company that contracted directly with DIRECTV, and thus were employees, not independent contractors, of both companies.
Members of the Equal Employment Advisory Council (EEAC) can read more here.