Joint Employer Liability: Notes from Australia

SAMUEL ESTREICHER, NICHOLAS SAADY

NYU law professor Samuel Estreicher and Nicholas Saady, LLM, conduct a comparative analysis of the doctrine of joint employer liability, looking at the rules adopted by the U.S. Department of Labor and National Labor Relations Board as compared to the approach Australia has taken in an analogous context, “accessorial liability” doctrine.

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Thomas v. Payne

Docket: 17-1833

Opinion Date: May 22, 2020

Judge: Grasz

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

After the district court granted petitioner partial habeas relief, both petitioner and the state appealed. The Eighth Circuit agreed with the district court that petitioner's guilt-and-penalty ineffective-assistance claims were procedurally defaulted. However, the court held that no procedural default was triggered in the initial Arkansas Rule of Criminal Procedure 37 proceedings. In this case, habeas relief cannot be granted on petitioner's guilt-and-penalty ineffective-assistance claims because he cannot establish cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. The court also held that the district court did not err in denying petitioner a hearing for his jury-pool ineffective-assistance claim where petitioner received a constitutionally adequate jury and he was not prejudiced. Finally, the court held that petitioner's McCoy-type claim is procedurally defaulted and the court rejected his request for a hearing. Accordingly, the court affirmed in part and reversed in part.

Davis v. Washington University in St. Louis

Docket: 18-3345

Opinion Date: May 22, 2020

Judge: Stras

Areas of Law: ERISA

Three retirement-plan participants field suit against WashU for breach of its fiduciary duties under the Employee Retirement Income Security Act (ERISA). The district court dismissed the complaint for failure to state a claim. The court held that plaintiffs sufficiently alleged that fees were too high and that WashU should have negotiated a better deal. The court held that a failure of effort or competence is enough to state a claim for breach of the duty of prudence. In this case, two inferences of mismanagement are plausible from the WashU's failure to offer more institutional shares. However, the court held that plaintiffs' claims that WashU had several underperforming investments in the plan for too long was properly dismissed, because the allegations failed to establish a meaningful benchmark for evaluating the challenged options. Accordingly, the court affirmed in part, reversed in part, and remanded.