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Quick Takes:

  • Joint Employer Status Found Merely Based on Indirect or Potential Control: In a case of wide-ranging import for any company using subcontractors or subsidiaries, the National Labor Relations Board has established a new standard for determining when two entities constitute a “joint employer.” Historically, both entities had to exercise actual “immediate and direct” control over the employees’ terms and conditions of employment to be considered a joint employer. The Board’s new test eliminates the requirement that the control be either “immediate or direct” and considers the potential that one party has to directly or indirectly control the employment terms of another entity’s workers. Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (Aug. 27, 2015).


  • Protected Concerted Activity: The NLRB ruled recently that an employer violated the National Labor Relations Act by discharging an employee after it received notice that the employee had filed a Fair Labor Standards Act (“FLSA”) lawsuit “on behalf of himself and other similarly situated employees,” – even though the lawsuit was filed without the consent of any other employees — because it was reasonable to conclude that the employer believed, or at least suspected, that the employee was engaged in concerted group action. 200 East 81st Restaurant Corp. d/b/a Beyoglu and Marjan Arsovski, 362 NLRB No. 152 (2015).


  • FLSA Settlements: The Court of Appeals for the Second Circuit, in Manhattan, characterizing the FLSA as a “uniquely protective statute,” has ruled that private parties cannot effectively voluntarily dismiss an FLSA action with prejudice without the approval of the district court or the U.S. Department of Labor.  Cheeks v. Freeport Pancake House, 2015 U.S. App. LEXIS 13815 (2d Cir. 2015)