Justices opt to stay out of joint-employer battle for now
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Wednesday, January 10, 2018

Justices opt to stay out of joint-employer battle for now

By Pamela Wolf, J.D.

The Supreme Court has denied the petition for certiorari filed in DirectTV, LLC v. Hall (16-1449), which sought review of a Fourth Circuit joint-employer ruling that the petitioners contend departed from every other circuit to have considered the issue. The Justices issued the order denying certiorari on January 8, 2018, without explanation. The joint-employer issue has continued to heat up after the National Labor Relations Board, in its December 14, 2017, Hy-Brand Industrial Contractors, Ltd. decision, expressly overruled the Obama-era joint-employer standard that the Board had established in its August 2015 Browning-Ferris Industries ruling.

Fourth Circuit test. The denial of certiorari lets stand a January 2017 ruling, in which the Fourth Circuit determined that satellite installation technicians were jointly employed by the satellite TV provider and the intermediary companies with whom it contracted for installation work (see Under new test, DIRECTV is joint employer of satellite installation techs, January 26, 2017). The Fourth Circuit found that in their “one employment” with the two entities, the technicians were economically dependent on them and so were employees, not independent contractors, under the FLSA and Maryland wage law. Reversing dismissal of the technicians’ overtime claims, the Fourth Circuit found the district court had applied the wrong joint-employment test and an unduly high evidentiary burden on a motion to dismiss.

Heated battle continues. After the NLRB overruled the Browning-Ferris joint-employer standard in Hy-Brand, it convinced the D.C. Circuit Court of Appeals to remand Browning-Ferris to the Board in light of the Board’s new precedent in Hy-Brand. However, crying foul, the Teamsters union has moved the D.C. Circuit for reconsideration, arguing that Board Member William Emanuel should have recused himself in Hy-Brand because the full Board treated Hy-Brand as really all about Browning-Ferris, and in Browning-Ferris, one party was represented by Emanuel’s former employer, Littler Mendelson.

The Teamsters also assert that the December 22, 2017, remand order in Hy-Brand was entered before the Board’s Hy-Brand decision even became a final order and before the clock had run out for parties to seek reconsideration. The union also had no opportunity to oppose the Board’s motion for remand in the D.C. Circuit.

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