Airline Not a “Joint Employer” of Ground Handling Service Employees for Purposes of Family and Medical Leave Coverage

The Ninth Circuit Court of Appeals has ruled that an airline was not the "joint employer" of workers employed by ground handling service companies with which it contracted for services. The case is Moreau v. Air France, which issued on September 15, 2003, and was amended on January 29, 2004.

In Moreau, an airline was sued by its employee because of the airline’s failure to provide the employee with family and medical leave under the federal and state law. The airline defended on the ground that it did not employ a sufficient number of employees at the facility where the plaintiff worked to trigger coverage under either law. While both laws exempt employers who do not employ at least fifty employees within 75 miles of a specific location, the plaintiff argued that, in determining whether the airline could avail itself of this exemption, the court should take into consideration the workers employed by a number of companies with whom the airlines contracted to provide various ground services, including cargo and baggage handling, and food services. The plaintiff argued that these additional workers were “jointly employed” by the airline and the ground service companies, and therefore met the fifty-employee test.

The court disagreed. While recognizing that the fifty-employee requirement for coverage under both the federal and state family and medical leave laws can be satisfied by application of a “joint employer” test, the court concluded that this test was not satisfied. In reaching this conclusion, the court was unpersuaded by the fact that the airline gave specific instructions about how it wanted the work performed, and examined workers' performance to ensure compliance with the airline's standards. While such evidence may, in some situations, constitute “indirect” supervision, the totality of evidence established that the airline did not provide day-to-day control or supervision over the ground service workers. Hence, if the airline observed problems concerning worker performance, complaints were raised with the ground service company, who addressed the issue with the employee. Further, the airline did not determine the rates of pay for the ground service workers, and did not set work schedules, nor even keep employment records for these workers. In short, there was insufficient evidence to establish that the airline had authority to control the terms and conditions of employment for these workers such as to make the airline their joint employer.

The Moreau case apparently is the first case to address joint employment issues within the context of the family and medical leave laws; however, the analysis applied by the court was borrowed from other cases that have addressed these issues under other federal labor laws, including the Fair Labor Standards Act. Joint employment issues also are frequently raised in the context of union organizing under the National Labor Relations Act.