Supreme Court Asked to Review Broad New Joint Employer Test

June 16, 2017

DirecTV has asked the U.S. Supreme Court to review a sweeping Fourth Circuit Court of Appeals decision that has created the broadest joint employer test under the Fair Labor Standards Act in the U.S., posing serious risks for every firm that uses contractors.  In Salinas v. Commercial Interiors, the Fourth Circuit created a new test that goes farther than the controversial one adopted by the Obama NLRB, holding that to avoid joint employer status, two companies have to be "completely disassociated."  The court identified six non-exhaustive factors that courts should use to determine joint employer status, noting that any "one factor alone" can serve as the basis for finding that two entities are not completely disassociated.  DirecTV's petition to the high court states: "Nothing in the statute or its implementing regulations justifies such a dramatic expansion of liability under the FLSA."  HR Policy Association will file an amicus curiae brief in support of DirecTV's petition.