Garen Dodge
Jackson Lewis P.C. | Reston
Diane Ennist
Carey International, Inc. | Washington, D.C.
Joint Employer Issues
February 23, 2016
Tegna (and webcast)
ACC-NCR
McLean, Virginia 22107
Garen Dodge
Garen E. Dodge is a Principal in the Washington, D.C. Region, office of Jackson Lewis P.C. He is Leader of the firm’s Government
Relations practice, and co-coordinator of the firm’s Government Contracts industry group. He is also a co-coordinator of the firm’s
Background Checks industry group.
Mr. Dodge’s diverse practice covers the spectrum of labor and employment litigation. His recent victories include serving as lead
counsel in a jury trial alleging defamation in Fairfax, Virginia Circuit Court, obtaining an injunction in DC federal court in a noncompete case, and prevailing in a five day arbitration involving allegations of age and national origin discrimination. Throughout
his career, he has served as counsel of record in seminal U.S. Supreme Court and appellate cases as Amicus Curiae. Mr. Dodge
advises clients on issues involving privacy, discrimination, background checks, harassment, wage and hour, and occupational
safety and health. He assists companies in establishing workplace programs, and trains supervisors and employees on effective
personnel policies. He represents clients before Congress and key federal agencies on labor and employments issues, and has
testified before agencies such as the U.S. Commission on Civil Rights.
Mr. Dodge has been recognized by Smart CEO as one of its “Go To Lawyers” and by Lawdragon as a “Leading Lawyer. For many
years, he has also been named a “Super Lawyer” in both Washington, D.C. and Virginia, and has long been “AV” rated by
Martindale-Hubbell.
Mr. Dodge is a member of the Virginia, District of Columbia and Wisconsin bars. He is a Member of the United States Supreme
Court bar, as well the federal and state courts in Virginia, District of Columbia and Wisconsin.
He is a member of the Labor
Relations Committee of the U.S. Chamber of Commerce and serves as General Counsel to the Council for Employment Law Equity.
He served as an Attorney-Advisor for the U.S. Department of Labor, Office of the Secretary, Benefits Review Board from 19821985.
Mr. Dodge received his B.A. summa cum laude from the University of Wisconsin – Green Bay in 1979. He earned his J.D. in 1982
from the College of William & Mary Marshall-Wythe School of Law.
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Diane Ennist
Diane Ennist is SVP, General Counsel and Corporate Secretary of Carey International, Inc., a global
leader in chauffeured transportation since 1921. She oversees all of Carey's legal affairs, as well as the
franchise department. Prior to joining Carey in 2006, Diane was the Vice President, Deputy GC of
Litigation for Freddie Mac. Before that, Diane was a Senior Trial Counsel at the United States
Department of Justice and earlier, practiced commercial litigation at a large law firm in Ohio. She
serves on the ACC NCR Board.
Diane graduated from the University of Rochester with a B.A. Magna Cum Laude with High Distinction.
She received her J.D. with Honors from the Ohio State University and was elected to the Order of the
Coif. She is a member of the bars of the States of Ohio (inactive) as well as Virginia, the District of
Columbia, several federal appellate bars, and the United States Supreme Court. Diane is the immediate
past president of the board of Family Services, Inc., a diverse $25 million social service non-profit and
serves as a co-chair of ACCNCR’s Diversity Committee.
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Presentation Outlook
 The NLRB’s New Joint Employer Standard
 DOL’s Interpretation
 Legislative Action in Wake of the Board’s New Standard
o Federal
o State
 Impact of the New Standard on Other Federal Agencies
o Department of Labor (FLSA, FMLA, OSHA)
o U.S. Equal Employment Opportunity Commission (EEOC)
o Office of Federal Contract Compliance Programs (OFCCP)
 Practical Considerations to Minimize Finding of Joint
Employer Status
 Walling Off Subsidiary/Affiliate
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5
Browning-Ferris Industries of California, Inc., 362 NLRB
No. 186 (August 27, 2015)
• Browning-Ferris (BFI) operates a waste recycling facility.
• BFI subcontracts employees from Leadpoint to sort recyclable
items inside the facility and to perform basic housekeeping
functions.
• Teamsters (Union) filed a petition to represent approximately
240 employees, which were comprised of sorters,
housekeepers, and screen cleaners.
• The Union already represented approximately 60 direct BFI
employees who worked on the exterior of the facility.
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Browning-Ferris Industries of California, Inc., 362 NLRB
No. 186 (August 27, 2015)
Prior Joint Employer Standard:
 Where “two separate entities share or codetermine
those matters governing the essential terms and
conditions of employment.”
 Control must be “direct and immediate” (i.e. hiring,
firing, supervision, and direction).
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Browning-Ferris Industries of California, Inc.,
362 NLRB No. 186 (August 27, 2015)
New “Modified” Joint Employer Standard:
(1) whether a common law employment relationship exists;
(2) whether the potential joint employer “possesses sufficient
control over employees’ essential terms and conditions of
employment to permit meaningful bargaining.”
Control under the new standard can be direct, indirect, or even a
reserved right to control, whether or not that right is ever
excised.
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Browning-Ferris Industries of California, Inc.,
362 NLRB No. 186 (August 27, 2015)
What Does the Board Consider a Common Law
Employment Relationship?
o Restatement (Second) of Agency
o Section 220(1) provides that a “servant is a person
employed to perform services in the affairs of
another and who with respect to the physical
conduct in the performance of the services is
subject to the other’s control or right to control.”
(emphasis added)
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Browning-Ferris Industries of California, Inc., 362 NLRB
No. 186 (August 27, 2015)
What is “sufficient control” under the new
joint employer standard?
Direct, Indirect, or a
Reserved Right to Control.
Whether or not that right is ever exercised.
10
Browning-Ferris Industries of California, Inc., 362
NLRB No. 186 (August 27, 2015)
 Possible indicators of joint employer status:
• Controlling the number of employees needed for job or task.
• Safety rules and standards.
• Establishing production standards.
• Determining job duties.
• Instruction relating to the means and manner to accomplish a job.
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Browning-Ferris Industries of California, Inc., 362
NLRB No. 186 (August 27, 2015)
 Possible indicators of joint employer status (continued):
• Training employees or establishing employee training
requirements.
• Indirectly controlling employees’ wages through a commercial
agreement.
• Retaining potential control over employment conditions
reserved in commercial agreements.
• Retaining the right to terminate the relationship.
• Requiring employees to follow rules or handbooks.
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Browning-Ferris Industries of California, Inc., 362
NLRB No. 186 (August 27, 2015)
 Possible indicators of joint employer status (continued):
• Imposing highly standardized operational requirements.
• Owning facilities/equipment where employees work.
• Requiring operational modifications.
• Monitoring and auditing operations.
• Setting maximum wage rates for employees.
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Browning-Ferris Industries of California, Inc., 362 NLRB
No. 186 (August 27, 2015)
Current Status
 On September 4, 2015, a tally of ballots showed a 73-17 vote in favor of
union representation. The Teamsters were certified.
 Teamsters filed an unfair labor practice charge against BFI, claiming that
the Company was refusing to recognize or bargain with the Union.
 The Board issued a unanimous decision, finding BFI and Leadpoint, as
joint employers, had violated the NLRA.
 BFI appealed the decision to the U.S. Court of Appeals for the D.C.
Circuit on January 20, 2016.
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U.S. Department of Labor FLSA AI
• Wage and Hour Administrator David Weil
•
Protecting workers in fissured workplaces
•
Expanding the definition of employer both horizontally and vertically.
•
Using an Administrator’s Interpretation and FAQ’s to provide clarity around the proper
interpretation of a statutory or regulatory issue.
• January 20, 2016 Administrator’s Interpretation No. 2016-1
•
Fair Labor Standards Act
•
Statutes share the same definition of employment, includes “to suffer or permit to work.”
This definition was written to have as broad an application as possible.
•
Distinct from narrow definition of employment under NLRA
•
AI is not the law but is the agency's standard and may be accorded deference by the courts
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U.S. Department of Labor FLSA AI
Horizontal Joint Employment
• Where employee has employment relationship with two or more employers and
the employers are sufficiently associated or related with respect to the employee
such that they jointly employ the employee.
• Focus is on the relationship of the employers to each other.
• FLSA regulations provide guidance on how to analyze the relationship
• Example 1: Separate restaurants that share economic ties and have same managers
controlling both restaurants
• Example 2: Home health care providers that share staff and have common
management.
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U.S. Department of Labor FLSA AI
Horizontal Joint Employment
http://www.dol.gov/whd/flsa/jointemployment.htm
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U.S. Department of Labor
FLSA AI
Relevant
Factors
for Assessing
Horizontal Joint Employment
•
Does one potential joint employer
supervise the work of the other;
•
Who owns
employers;
joint
•
Do the potential joint employers share
supervisory
authority
for
the
employee;
•
Do the potential joint employers have
any overlapping officers, directors,
executives, or managers;
•
Do the potential joint employers treat
the employees as a pool of employees
available to both of them;
•
Do the potential joint employers share
control over operations;
•
Do the potential joint employers share
clients or customers; and
•
Are the potential joint employers’
operations inter-mingled;
•
Are there any agreements between the
potential joint employers.
the
potential
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U.S. Department of Labor
FLSA AI
Vertical Joint Employment
o Where the employee has an employment relationship with one employer
(typically a staffing agency, subcontractor, labor provider or other
intermediary employer) and the economic realities show that he/she is
economically dependent on, and thus employed by, another entity involved
in the work.
o Unlike horizontal joint employer relationship, vertical joint employment
analysis examines the economic realties of the worker to determine whether
the employees are economically dependent on those potential joint employers
an are thus their employees.
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U.S. Department of Labor FLSA AI
Vertical Joint Employment
http://www.dol.gov/whd/flsa/jointemployment.htm
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U.S. Department of Labor FLSA AI
Factors for Assessing Vertical JE and Economic Dependence
 Directing, Controlling, or Supervising the Work Performed
 Controlling Employment Conditions
 Permanency and Duration of Relationship
 Repetitive and Rote Nature of Work
 Integral to Business
 Work Performed on Premises
 Performing Administrative Functions Commonly performed by Employers
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U.S. Department of Labor FLSA AI
Impact of Administrator’s Interpretation
•The Administrator’s Interpretation is not the law.
• It is the DOL’s interpretation of established law.
• Will likely be provided judicial deference
•Allows employers to predict focus of DOL investigation
• Provides clear guidance for DOL investigators
•Likely used by other agencies to expand the definition of joint
employment
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U.S. Department of Labor FLSA/MSPA
 Potential cost of joint employer status:
o wage and overtime liability together with liquidated
damages and the worker’s attorneys’ fees.
 Potential sources of joint employer liability:
o Specific industries have been frequent targets of wage
and hour claims and investigations.
o Specific industries have become a favorite target for
class, FLSA collective, and multi-plaintiff lawsuits
seeking millions of dollars and often driven by
attorneys' fees claims.
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U.S. Department of Labor FLSA AI
• Previous AI in 2015 regarding independent contractors expanded the
definition of “employee”.
• This January 2016 AI expands the definition of “employer”
• Prior focus was on the horizontal employer
• Now the focus is also on the vertical employer
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Congressional Action in Response to NLRB’s New
Joint Employer Standard
 The Protecting Local Business Opportunity Act
(S.2015/H.3459) was introduced on September 9, 2015
by Senator Lamar Alexander (R-Tenn) and House
Representative John Kline (R-Minn). The Act seeks to
amend the definition of “employer” under the NLRA.
o “Section 2(2) of the National Labor Relations Act (29) U.S.C. 152(2)) is
amended by adding at the end the following: “Notwithstanding any
other provision of this Act, two or more employers may be
considered joint employers for purposes of this Act only if each
shares and exercises control over essential terms and conditions of
employment and such control over these matters is actual, direct
and immediate.”.
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Congressional Action in Response to NLRB’s New
Joint Employer Standard
 Appropriations Rider
 “Sec. 408. None of the funds made available by this Act may
be used to investigate, issue, enforce or litigate any
administrative directive, regulation, representation issue or
unfair labor practice proceeding or any other administrative
complaint, charge, claim or proceeding that would change the
interpretation or application of a standard to determine
whether entities are “joint employers” in effect as of January 1,
2014.”
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Congressional Action in Response to NLRB’s New
Joint Employer Standard
 On September 28, 2015, Senator Mike Lee (R-UT)
introduced The Protecting American Jobs Act (S.
2084) which would transfer prosecutorial and
adjudicative authority over labor disputes from the
NLRB to federal courts. The bill would effectively strip
the Board of its power to prosecute and adjudicate
labor dispute.
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Washington DC Efforts
 Coalitions: CSLB
 Strategy: FY 2017 Appropriations Rider
 March 17, 2016 Hearing, House Small
Business Subcommittee
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State Legislative Action
 Several states have passed legislation aimed at curtailing
the impact of the NLRB’s new joint employer standard.
 On
February 1, 2016, the Indiana House of
Representatives passed bipartisan legislation (House Bill
1218) codifying that a franchisor is not considered to be
an employer of a franchisee or a franchisee’s employees.
 Tennessee, Texas, Michigan and Louisiana recently passed
legislation which provides that a franchisor shall not be
considered an employer of a franchisee or the franchisee’s
employees.
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U.S. Department of Labor
Family and Medical Leave Act
 Issued in January 2016
o Issued Fact Sheet #28N: Joint Employment and Primary
and Secondary Employer Responsibilities Under FMLA
 Definition of Joint Employment:
o Joint employment exists when an employee is employed by
two (or more) employers such that the employers are
responsible for compliance with the FMLA.
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U.S. Department of Labor
Family and Medical Leave Act
 The primary employer is responsible for:
o Giving required notices to its employees;
o Providing FMLA leave; and
o Maintenance of health benefits.
 The
primary employer is
responsible for job restoration.
also
mostly
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U.S. Department of Labor
Family and Medical Leave Act
 A secondary employer is responsible for accepting the
individual upon return from FMLA
o As long as the company continues to use an employee from the
staffing agency, and the agency chooses to place this employee
with the company.
 As a secondary employer, the company would also be
prohibited from interfering with an employee's FMLA
rights and also from discriminating against him/her for
protected activities, even if the company is not otherwise
a covered employer, as defined above, under the FMLA
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U.S. Department of Labor
Family and Medical Leave Act
 Determining who is a primary and secondary
employer:
o Who has authority to hire and fire, and to place or assign work to
the employee;
o Who decides how, when, and the amount that the employee is
paid; and
o Who provides the employee’s leave or other employment
benefits.
 In the case of a temporary placement or staffing agency,
the agency is most commonly the primary employer.
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U.S. Department of Labor
Family and Medical Leave Act
 Employees who are jointly employed by two employers
must be counted by both of them in determining the
employer’s coverage and employee eligibility under
FMLA, regardless of whether the employee is maintained
on one or both of the employers’ payrolls.
 The employees worksite is the primary employer’s office
from which the employee is assigned or to which the
employee reports.
o However, if the employee has physically worked for at least one
year at a facility for a secondary employer, then the employee's
worksite is that location.
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U.S. Department of Labor
Occupational Safety and Health Administration
 Draft policy prepared by DOL’s Office of the Solicitor
illustrates the agency’s intent to hold franchising
corporations responsible, at least in part, in OHSA and
other labor law enforcement actions against franchisee
businesses.
 The draft policy addresses whether, for purposes of
OSHA, a joint employment relationship can be found
between the franchisor and the franchisee, leading both
entities to be liable as employers.
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U.S. Department of Labor
Occupational Safety and Health Administration
 A joint employer standard may apply where the
corporate entity exercises direct or indirect control over
working conditions, has the unexercised potential to
control working conditions, or based on the economic
realities.
o Control includes such matters as hiring, firing, discipline,
supervision and direction.
 Draft policy also contains laundry list of documents and
information OSHA
determination.
should
obtain
to
reach
its
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U.S. Department of Labor
Occupational Safety and Health Administration
 If OSHA’s (draft) joint employer policy advances, OSHA’s
ability to cite a host employer would be enhanced and
could be used by unions as leverage against employers
who have been targeted for organizing.
 An expansion of the joint employer standard could also
provide an opportunity for OSHA to ratchet up fines
against a parent company for repeated violations.
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U.S. Department of Labor
Occupational Safety and Health Administration
 In January 2015, two GOP house leaders accused the DOL of
lying about not coordinating with the NLRB on the draft
policy.
 These allegations come in light of new evidence showing that
the NLRB’s GC and staff at the DOL discussed the joint
employer standard over a video conference call.
 Due to the significance of the NLRB’s new joint employer
standard, it is not surprising that discussions would have taken
place in advance of its issuance; however, the DOL’s failure to
provide correspondence or otherwise cooperate with the
investigation is, at best, curious.
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Joint Employer Liability Regulated by
The U.S. Equal Employment Opportunity Commission
 The EEOC filed an amicus brief in Browning-Ferris stressing
that the Board’s joint employer standard will influence
judicial interpretation of Title VII.
 Compensatory damages are capped under Title VII, and the
caps generally increase as the number of employees increases.
Thus, the plaintiff’s bar will be encouraged to establish joint
employer status because doing so could increase the number
of employees, thereby increasing the amount of available
damages.
 Threshold coverage may impact the small business exception.
42
Joint Employer Liability Regulated by
The Office of Federal Contract Compliance
 OFCCP administers and enforces three federal contract-
based rights laws that require most federal contractors
and subcontractors, as well as federally assisted
construction contractors, to provide equal employment
opportunities.
 Anticipated expansion of jurisdictional reach through
“single entity” test.
 Published a “question and answer” application on the
single-entity test which contains 27 questions to guide
potential contractors through the analysis.
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Practical Considerations to Minimize
Finding of Joint Employer Status
 There is no specific test.
 Ensure that the agreement with the contractor supports
the fact that you are not a joint employer; and ensure
that the practice is consistent with the agreement.
 One end of the continuum is to give the contractor
complete control, and evaluate contractor’s performance.
 On the other end of the continuum is to eliminate the
contractor entirely and directly employ those working at
the facility.
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Practical Considerations to Minimize
Finding of Joint Employer Status
 Review and revise agreements to support your position
that Company A is not a joint employer of Company B’s
employees.
 Some terms to consider for the contractor agreement:
o Company B’s employees are solely employed by Company B; the parties
do not intend to create a joint employer relationship.
o Recite that Company B alone retains the sole right to…and then include
a list of employment decisions…such as hire its employees, determine
their wages and benefits, assign, schedule, train, discipline, and
terminate its employees.
o Include a statement that Company A shall not and does not have the
right to ….and include all of the rights Company B alone has in this list.
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Practical Considerations to Minimize
Finding of Joint Employer Status
 Ensure that Company B has its own employment policies
and procedures. You can review them as part of due
diligence when deciding whether to enter into or renew
your contract with them.
 To the extent Company A concludes that it must exercise
some control over the operation, minimize it to the
extent possible and realize that any control, or right to
control, that you retain may be used against you to
support a finding that you are a joint employer.
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Practical Considerations to Minimize
Finding of Joint Employer Status
 Review indemnification language. Consider requiring
Company B to indemnify Company A for any costs
incurred in opposing a joint employer claim.
o Include language that Company B will cooperate with you in
presenting your defense to the joint employer claim by making
available management representatives to prepare for hearings
and to testify at hearings, and to provide documents reasonably
requested by Company A relating to this issue.
o Should Company B reimburse Company A’s representative for
the cost of bargaining?
 Bring the contracted work in-house.
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Practical Tips to “Wall Off”
A Subsidiary or Affiliate
• Governance Structure
o Rather than a VP or General Manager, implement a corporate structure
with truly separate president, board and officers
o Board members unique to that company (no overlapping board
members between sub and parent)
o Processes and presentations to report up to the board of parent
o Strict adherence to corporate formalities such as board meetings,
keeping Minutes, and structured reporting mechanisms
o Sub should have its own policies, even if mirror those of the parent,
and should be tailored for the subsidiary
o Contract between parent and sub (possibly a franchise contract) should
make clear that parent is not a joint employer with the sub
o No specific “safe harbor”
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Practical Tips to “Wall Off”
A Subsidiary or Affiliate
• Employment Structure
o Focus on employment, hiring, firing, reviews, discipline, supervision, pay decisions
o All HR decisions for the sub must be made locally
o Employees at the sub only work for the sub and are paid by the sub
o If parent has employees in that jurisdiction, set up a new payroll company
o Move the employees of the parent to a different facility so they are not in the same
building
o No cross-use of employees between parent and sub. Employee works for
one or the other
o Sub should have separate connection to the payroll services provider (could be in a
Shared Services Contract )
o Sub takes physical possession of the personnel files and maintains them (will need
secure facility)
o Training to take on new officer and director roles
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Practical Tips to “Wall Off”
A Subsidiary or Affiliate
• Other
o Check real and personal property leases so that only the sub is on the lease
o Consider your insurance policies. DIC (Difference In Coverage) insurance
for your new officers and directors
o Develop Shared Services Contract (for services such as bank accounts, billing,
marketing) shared with the parent
o Accounting must be able to accurately track the credits and debits between
parent and subsidiary
o Be sure you can produce separate P&Ls
o Necessarily means ceding control by parent, but separation must be real
and not window-dressing
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Joint Employer Issues
Questions?
Garen Dodge
[email protected] | (703) 483-8323
Diane Ennist
[email protected] | (202) 895-1220
4823-9611-3451 (Version 1)
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