Whether a county may be deemed a joint employer under the FLSA when it plays a mere administrative role in a State's social services program by legislative mandate and has no power to prevent the State's decision not to pay overtime wages

QUESTION PRESENTED Nothing is more foundational to the Fair Labor Standards Act (FLSA) than what it means to employ someone, yet this threshold question has been mired in confusion for decades, particularly in the joint employment context. The Courts of Appeals determine employer status by applying conflicting multi-factor tests to assess an amorphous touchstone, “economic reality,” with unpredictable and inconsistent results. The Department of Labor (DOL) left a regulatory void after proposing, then rescinding, a rule defining joint employment under the Act. And the definition of “employ” under the FLSA—“to suffer or permit to work,” which turns on whether a putative employer allows or tolerates unlawful work conditions, while having the power to prevent them—generally has not figured into the Courts of Appeals’ analysis at all. From this chaos, the Ninth Circuit applied Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983)—despite the DOL’s rejection of the Bonnetie factors as “not the most appropriate standard”—to conclude the County of Los Angeles was liable, as the joint employer of 170,000 home care providers in the State of California’s InHome Supportive Services program, for overtime wages that the State, in its sole discretion, decided not to pay.! The question presented is: Whether a county may be deemed a joint employer under the FLSA when it plays a mere administrative 1 Rescission of Joint Employer Status Under the Fair Labor Standards Act Rule, 86 Fed. Reg. 40,939, 40,947 (July 30, 2021). ii QUESTION PRESENTED—Continued role in a State’s social services program by legislative mandate and has no power to prevent the State’s decision not to pay overtime wages.