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b'The vast web of federal and state laws protecting employees stands or falls on a single concept: Is there an employment relationship? Payment of overtime, responsibility for employment taxes, union obligations, responsibility for workplace discrimination, workers compensation – every employment law obligation depends on the existence of an employment relationship.
Thus, it may be surprising to some that most employment laws do not define who is an employer or who is an employee. The Fair Labor Standards Act, for example, defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” and an “employee” is “any individual employed by an employer.” The National Labor Relations Act also makes us dizzy with circular definitions: an “employer” is “any person acting as an agent of the employer, directly or indirectly” and an “employee” is “any employee.”
The result: Whether an employment relationship exists has been left to the vagaries of agency guidance and decisions. In its 2015 Browning-Ferris decision, the NLRB expanded the definition of “joint employment” to include employers who share direct, indirect, potential or even “ultimate” control over a worker. In a 2016 Administrator’s Interpretation, the Labor Department similarly expanded the definition of joint employment, declaring that “employment generally should be defined expansively” under the FLSA, unrestrained by the concept of control found in the common law concepts of employment. Suddenly, many businesses faced investigations regarding activities of subcontractors, and franchisors were named as defendants for alleged violations by franchisees.
DOL has withdrawn its 2016 Administrator’s Interpretation, but has yet issued no replacement guidance. Browning-Ferris still stands, although the NLRB has announced its intention to issue regulations regarding joint employment. This panel will explore whether and how the key concepts of employment, employer and employee should be defined under our nation’s employment laws: By Congress, the Courts, or agencies? Adopting one definition or many? Based on statutory definitions or the common law?

Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University Law School
Mr. Richard F. Griffin, Jr., Of Counsel, Bredhoff & Kaiser, PLLC
Hon. Philip A. Miscimarra, Partner, Morgan & Lewis
Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit'