retraining notification act or the warrant to break it down i think we have some simple issues here a series of simple issues warning will this court generally adopt the what they call the single employer doctrine that's in the regulations and that other courts of adopted that allows multiple corporate entities to be considered together the employer for purposes of the act now this is an easy question in this case because nobody questioned that the the defendants already didn't question the validity of that doctrine the district court in the end of your sentence is sovereign didn't what clinton did not question the validity of that doctrine and indeed they relied on it and everyone agreed to joint doctrine joint employer single employer most courts tend to use the shorthand single employer i don't think it makes much difference which shorthand we use shorthand may be different depending on what sort of relationship you're talking about in a given but what may be you know for me first of all it's it's not to relevant what sovereign things because sovereign didn't file a brief so from our perspective of writing something about what the law means i'm not sure what to say and in that sense but to me that the question isn't joined employer single employer it's just employer orders in the words of the statute talk about employers ordering things and how can you say employees at the nursing home were employed by sovereign that's what seems funny to me about the case understand what my conceptualising funny and i think i'm going to drop two parts of the court question if i understand employer and orders if i can take orders first this case is a little funny and may be due for a narrow opinion because in this case page twelve forty four the decision to close was made by governmental authorities nursing homes or horrible nursing homes and the government with drew funding so that's not sovereign samas not doing the ordering right nor did it m c w h man or washington courthouse in a sense one would say well the employer didn't order the shutdown but in the warren act sense we all know from the regulations at six thirty nine point nine that a government ordered shut down can nonetheless be a an act that requires the sixty days notice to the employees again sovereign admitted that below that by the employer not by the consultant ok so now now we're to the question of employer who is the employer and what is the statu e no your honor they had what had been going on was from october or even september of thirteen the government had said here's a list of a couple dozen or more deficiencies some of which are horrible if you don't get this fixed by january sixteenth you're dead and they didn't get it fixed by january sixteenth when they cut after they cut off the medicaid and medicare funding reimbursement right yes they didn't say did they also say close there is in the record saying that or again you wait fifteen from a government official the says we are proposing to take away your license to operate the nursing home the are sovereign throughout this set i think there's some it's in the practical world since it's true if the funding was cut off the facility would have to close period there were not you know not it wasn't a private pay situation all they could do was you know limp along trying to get the patients out to somewhere else and they did that over the course let me ask you this i realize that we're dealing with a five factor test that is not on all on all fours with state piercing or with necessarily other tests it's just it's you know kind of stands on its own i think that's what you're arguing right correct so what isn't enough you've got a situation where you clearly got a management company the calm consultant whatever let's go so far as to say that they're managing the business and the interim what is a nuff is is that enough and if you're saying that that's enough what do you have to support it that is enough  in the situation where the two entities are bringing together as a single employer or not parent subsidiary or sibling corporation sometimes that's a question here we have a question of two entities contracting with each other and this court and i know it's an unpublished opinion in the ajax case was dealing with another sort of contracting parties no enders and and asked when can ender's being liable as part of the employer under the warning for failing to give notice and this court in the unpublished opinion in ajax can list all the other courts of appeals decisions in that area and said that what it comes down to is essential these lender relationships if there's a fall the bank takes over the collateral and so they they become owners and so you can quite understand how that works i've never heard of a consulting relationship where the consultant becomes the owner doesn't become the owner your honor but it becomes owns the operative since the operator of the facility and that was what we have here as you read mr her his deposition he's somehow absentee guy in this family what is this if there must have been there was a contract to use the word contract so that of course suggest they're independent contractors but leave that aside what is the contract say to the contract that sovereign will be taking over day to day management of carlton nursing home there was no written contract your honor until after the things had gone south and medicaid funding had been cut off there was no written contract until that and that written contract written later describes them as merely an input independent contractor consultant blah blah blah but that was written nader and the guy who wrote it mr marshall of sovereign admits in his deposition he insisted that that contract be signed at the bitter end only so he can maybe try to get paid to pay the worker who paid the workers was it was money funded from was going down the tubes he had incorporated a new entity manner at washington courthouse which took over the being the nominal operator so yes in that sense a corporation created an l l c created by mr hooked on who was the nominal operator but as mr her thomas said in his deposition when asked who was operating this thing just on a practical day to day basis what were they in charge of everything well you know if employees needed to be fired if charged or disciplined who's in charge of that sovereign who is in charge of everything this mr mr  government driven shutdown which means that the that the unlawful act was the failure to give notice and who was on the scen running things being in charge of the work force to facilities who was in charge such that they were also in charge of whether to give notice on this extreme and he oversaw the hiring and firing of people that make sure the payroll came out would he be the one responsible for it and i imagine in your honor joe smith is going to you know if an employee of the nursing home and he just h just somebody comes and as if he's just several shooter he should come in and then felt like the problem i believe i would make the same argument your honor if he was acting in such thorough going control over responsible right there is usually such a person yes your honor in this case however the record shows at least in the like most favorable to us that the top employee of or at the nursing home was still underneath software she would ask mr her tanika not hire a new director of nursing and he'd say ass soft but you couldn't make this argument let's stop and we're separate entity correct it wouldn't be necessary well no because then you would speak stuck with the nursing home because that's the that would have been the employer do you have anything to say about the f l s a or any of the other statutes that are  new regulation in terms of how how other statutes treat the question of aggregating employers no your honor i don't because i think courts have treated after the common period when this test is explained it's explained in the context of some other statutes including the f l a say i mean there's an explanation that we're not changing the language but the intent is to be a special test we're incorporating some state principles some some effort to say principles i mean i'm just wondering if you have anything to add then be placed into those statutes i don't your honor because i've been thinking more and more in terms of the six thirty nine point three eight to the adopted thing rather than that earlier federal register commented on it not as familiar with as i should be i'm sorry what do you think that i mean sometimes you think and it just isn't there but wouldn't you think that if if there could be this type of management company or consulting company liability that there could be cases nilly hands over the reins to somebody else i don't know whether that's a common scenario but only you know sovereign as the record shows was doing this why because they wanted they just warm up so i think that the other nursing home that was referred to they at least somebody from sovern was also an owner of that nursing home right i believe that's correct did they operate other nursing homes but