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Couriered to the Courts
When the National Labor Relations Board (NLRB) issued the Browning-Ferris decision back in 2015, it established an expansive new definition of joint employment. Critics warned that this would not only sweep more businesses into litigation alleging joint employer status, but also that the concept would spread to other areas of the law. A lawsuit filed last month, alleging that Amazon is a joint employer with one of its contractors, is just one such example of these twin perils.
The lawsuit, filed in New York on May 7th, exemplifies many of the joint employer issues major companies and third party contractors are currently dealing with. The plaintiff is alleging that he has not received overtime pay for the work he has performed for an Amazon contractor, Speed of Sound. The lawsuit argues that Amazon should be responsible because, according to the complaint, it exercises control over the routes that Speed of Sound drivers take and monitors the performance of specific drivers.
The lawsuit was brought under the Fair Labor Standards Act (FLSA) and state law rather than the National Labor Relations Act (NLRA). However, observers of labor policy will note that the Wage and Hour Division, which enforces the FLSA, had attempted to broaden its own application of the joint employer standard in the wake of Browning-Ferris through publication of an Administrator’s Interpretation. And while that document was recently revoked, the Browning-Ferris decision, which started the whole expanded joint-employer train rolling, remains the law of the land.
This is not the first time that a business has found itself involved in litigation alleging joint employer status, and, until Browning-Ferris is overturned, the question of “who’s the boss” will remain difficult to answer. Hopefully new NLRB members can be quickly confirmed and help put an end to the confusion.