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Winter 2017

Employee Relations Law Journal, 

By: Elizabeth E. DiMichele, Howard S. Lavin

What is the proper test for determining joint employment status under the Fair Labor Standards Act? 
There has not been a straightforward answer to this question and two decisions by the U.S. Court of Appeals for the Fourth Circuit issued on January 25, 2017 – Salinas v. Commercial Interiors, Inc. and Hall v. DIRECTV, LLC – have further complicated the response.  To determine potential liability, its sister circuits apply variations on tests that focus primarily on the relationship between the worker and the putative joint employer.  In contrast, the Fourth Circuit enunciated in Salinas and applied in Hall a six-factor, non-exhaustive test more closely examining the relationship between the two putative employers.  The Fourth Circuit’s new joint employment standard significantly broadens the scope of potential liability under the FLSA. 

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