Argued October 30, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 1349 -- Harry D. Leinenweber, Judge.
For Darren Cuff, Plaintiff - Appellee: Alejandro Caffarelli, Attorney, Caffarelli & Siegel Ltd., Chicago, IL.
For Trans State Holdings, Inc., Trans States Airlines, Llc, Gojet Airlines, Llc, ED TROWBRIDGE, individually, Defendant - Appellant: David J.A. Hayes III, Attorney, Bridgeton, MO.
Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.
Easterbrook, Circuit Judge
United Airlines contracts with other firms for regional air services under the " United Express" brand. Trans States Holdings (Holdings) is one of United's suppliers. It owns two air carriers: Trans States Airlines (Trans States) and GoJet Airlines (GoJet). Our case presents the question whether Darren Cuff, who was on the payroll of Trans States, was covered by the Family and Medical Leave Act.
The FMLA applies only if the employer has at least 50 employees within 75 miles of a given worker's station. 29 U.S.C. § 2611(2)(B)(ii). Cuff worked at O'Hare Airport in Chicago. The parties agree that in January 2010, when it fired Cuff after he took leave despite its denial of his request under the FMLA, Trans States had 33 employees at or within 75 miles of O'Hare, while GoJet had 343 and Holdings had none. Cuff contends that he worked for Trans States and GoJet jointly. The district court granted summary judgment in Cuff's favor on that subject, 816 F.Supp.2d 556 (N.D.Ill. 2011), and a jury later determined that Cuff met the other
standards of eligibility for leave. It awarded Cuff $28,800 in compensatory damages, to which the judge added $14,400 front pay in lieu of reinstatement. The court also awarded Cuff about $325,000 in attorneys' fees and $6,000 in costs and interest. (N.D.Ill. Jan. 11, 2013).
The Department of Labor has issued a regulation, whose validity defendants do not challenge, providing that workers are covered by the FMLA when they are jointly employed by multiple firms that collectively have 50 or more workers. 29 C.F.R. § 825.106(a). A separate regulation adds that two or more firms may be treated as a single employer when they operate a joint business. 29 C.F.R. § 825.104(c). Cuff invoked both of these provisions, but the district judge relied exclusively on the former. Defendants have muddied the waters by directing much of their appellate presentation to the joint-business question. They observe, for example, that the National Mediation Board has concluded that the pilots at Trans States and GoJet must negotiate separately because the two carriers do not conduct joint air operations. But that is irrelevant to the question whether Trans States and GoJet jointly used Cuff's services. The joint-employment inquiry under § 825.106(a) is person-specific; it is possible for one person to be employed jointly by two firms that otherwise have distinct labor forces.
Regulation 825.106(a) supplies a list of factors to consider--all relevant, none dispositive. We remarked in Moldenhauer v. Tazewell Pekin Consol. Communs. Ctr., 536 F.3d 640, 644 (7th Cir. 2008), that open-ended lists do not decide concrete cases. Often a set of factors to be considered and balanced implies the need for a trial, but summary-judgment is possible when the facts allow. Cf. Secretary of Labor v. Lauritzen, 835 F.2d 1529 (7th Cir. 1987). And, like the district court, we think the summary-judgment record allows only one answer. The two lead factors identified by the regulation are whether " there is an arrangement between employers to share an employee's services" and whether " one employer acts directly or indirectly in the interest of the other employer in relation to the employee" . Both questions ...