Court Blocks Part of Labor Department's Joint Employer Rule

Labor
Published
Earlier this year, the Labor Department (DOL) announced a final rule to provide a clearer methodology for determining joint employer status under the Fair Labor Standards Act (FLSA). The rule offered employers clarity and certainty regarding their responsibility to pay federal minimum wage and overtime for all hours worked over 40 in a workweek.

 

The rule, which became effective in March 2020, was subsequently challenged by 18 states on the grounds that the rule was invalid. On Sept. 8, the federal district court for the Southern District of New York agreed, holding that the part of the rule dealing with vertical joint employment was arbitrary and capricious (there are two joint employer scenarios under the FLSA – vertical and horizontal employment).

The Court offered the following example of vertical employment:

Imagine that an employee works for a contractor. A corporation hires the contractor. The contractor fails to pay the employee the minimum wage, as required by the FLSA. If the contractor and the corporation are the employee's joint employers, the employee can sue both the contractor and the corporation for back wages. In other words, the contractor and the corporation are both on the hook for the employee's damages. But if the contractor and the corporation are separate employers, then the employee can sue only the contractor. Note that the wages due to the employee are the same in either scenario. The joint employment doctrine addresses only from whom the employee may collect damages. Imagine, for example, that the contractor goes bankrupt. If the corporation is her joint employer, the employee can still recover. If not, the employee is out of luck.

Horizontal relationships, which are rarer, involve related entities that employ the same worker.

The Final Rule narrowed the definition of joint employment by requiring actual control. Under the broader interpretations, builders faced uncertainty about what level of necessary oversight and coordination of their subcontractors might trigger joint employer liability. Under the Final Rule, where an employee performed work for the employer that simultaneously benefited another individual or entity, DOL provided a four-part test to determine whether the potential joint employer actually exercised the power to:

  • Hire or fire the employee;
  • Supervise and control the employee's work schedules or conditions of employment;
  • Set the employee's pay rate and method of payment; and
  • Maintain the employee's employment records.

In such a case, whether a person was a joint employer would depend on all the facts in a particular case. Additional factors could also be relevant in determining whether another person was a joint employer in this situation, but only when they showed whether the potential joint employer was exercising significant control over the terms and conditions of the employee's work.

It remains to be seen whether DOL will appeal the decision.

It also unclear at this time whether the scope of the decision extends beyond the Southern District of New York to the states that challenged the rule, or even nationwide.

According to published reports, the head of DOL's Wage and Hour Division said the Agency is disappointed in the district court's decision regarding the Joint Employer Rule but that it stands by the Rule and is weighing all options.

According to experts, businesses should evaluate their current arrangements, and companies that relied on DOL's new control tests to restructure business relationships should consult with their attorney as to the applicable law in their jurisdiction because the federal circuits apply different multifactor tests, and state laws may vary. NAHB will continue to monitor developments in the case and provide updates to members.

For more information, contact David Jaffe.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Economics
Oct 08, 2026
Remodeling Market Sentiment Remains Stable in Third Quarter Despite Headwinds

The National Association of Home Builders (NAHB) released the NAHB Remodeling Market Index (RMI) for the third quarter, posting a reading of 62—up one point compared to the previous quarter.

Trends
Oct 07, 2026
Share of Homes With Two-Story Foyers Increases For First Time Since 2022

For the first time since 2022, the share of new homes with two-story foyers increased, according to the Census Bureau's Survey of Construction (SOC). Despite the increase, the market share of two-story foyers has generally trended downward since 2017, with most new single-family homes being built without a two-story foyer both nationally and regionally.

View all

Latest Economic News

Economics
Oct 08, 2026
Remodeling Market Sentiment Remains Stable in Third Quarter Despite Headwinds

In the third quarter of 2026, the NAHB Remodeling Market Index (RMI) posted a reading of 62, up one point compared to the previous quarter. The RMI has remained within a narrow band between 59 and 70 for the past four years.

Economics
Oct 07, 2026
ARM Share Increased as Mortgage Rates Spiked

Mortgage application activity declined as the 30-year fixed mortgage rate rose sharply. The Mortgage Bankers Association’s (MBA) Market Composite Index, a measure of total mortgage application volume, decreased 7.7% month-over-month in September on a seasonally adjusted basis. Compared to a year ago, total mortgage applications were lower by 35.4%.

Economics
Oct 06, 2026
Mortgage Rates Rise as Treasury Yields Top 5%

Mortgage rates rose sharply in September as multiple factors applied significant upward pressure on the U.S. treasury yields. According to Freddie Mac, the 30-year fixed-rate mortgage averaged 6.86% in September, up nearly 20 basis points (bps) from August.