the broadest definition that has ever been included in any one act the f l s eight defines it sort of in a circular fashion first to an employer to include any person directly or indirectly working in the interest of an employer in relation to an employee merely showing any parent subsidiary relationship however would not be enough would it correct your honor a mere appearance of city or relationship would not be enough and that is really the critical facts in this case the plaintiffs have shown facts and in fact as we will discuss the district court found genuine issues of fact this with respect to the most essential facts pertaining to this case and the issues let's let me start at what for me and speaking only for me obviously is step one and the critical step here before we go for what hear obviously from both sides as to what you believe this court should speak to and employ as it has gone to the test must determine whether an entity can be a parent company or another entity influences directly or indirectly the terms essential to the employment of the employees there what does indirectly going or indirectly is a good example of a lot of the evidence that we have in this case we do not need to have a direct supervisor standing in front of an employee watching that employee throughout the day to watch every that is probably the most significant policy with respect to customer relations and that the operation of the business isn't it acts or have a rule in employees promotions absolutely your in the record a twelve seventy four to seventy five that as he scores used in deciding promotion to the system manager is very important here most of the employees are not or many employees instead of being hired directly as an assistant manager the evidence shows they work for a chain and their manager assistant before them based on their s t scores as a manager assistant that score is used in deciding promotions to the assistant manager and then further later in their career as an assistant manager that same score and that program is used to determine whether that assistant manager can be promoted to a branch manager so in fact two different times with respect to being hired or promoted to a and then promoted from that position does the actual promotion that the the promotions come from the subsidiary ok it's governed by the criteria set by the defendant or another aspect is the employee evaluation forms created in distributed by the parent company that contains all the criteria that are going to be used for those about you ations that is a good example of indirect influence there not directly you've used the word influence where did that come from and how does that differ from the word control seems to be a very very profound conflation of two words that to me have rather disparate meanings can control is a much stronger word than influence control criteria are factors that impact the employment situation and the terms and conditions of employment this court can find at a minimum in direct control those are the facts that we've been numerate it at length and i can run through in contrast to and if i can point out this is not a mere let me harris they stop you right there i find that more curious when you look at the regulation talks about doing employment they use the word share control are you changing the word share controlled influence or are you saying to cheer control and influence the insane your honor t regulation it will stick with a regulation with respect to subsection c being to share control the employee directly or indirectly ok i let me take you back now because judge fisher's just ask question that i thought was the set of who a pretty definite response one way or another and a few moments ago i thought i understood you to say that indirect control was essentially synonymous with influence now if i misunderstood you i want to be corrected because i have a problem with the word influence especially when we are trying to craft a test refine that response the indirect control the measure of control if you are setting regulations or rules or guidance that are to be followed you are asserting control over employees in this case that is what enterprise has done and not a mere owner shareholder or an owner and i want to be clear because the defendants have made that argument plaintiffs contend simply being a mere owner shareholder the owners as the record shows there is another holding company above enterprise it's the crawford group if anything that would appear to be a true holding company they are the owner of the defendant enterprise in this case as well as other subsidiaries founded enterprise holdings yes in looking at the totality of the circumstances here you need to look at what is the nature of of the business what are what is the function of the subsidiaries in the parent notably the defendant has made the bold unequivocal statement that enterprise holdings the defendant in this matter is not in the business of running vehicles of the response and they go further to state in fact enterprises not own any rental cars they make that statement because they want this court to believe and to consider enterprise to be merely an owner shareholder and on our evidence  record starting with a one of six six in the appendix the corporate organization document states with respect to at the time is called enterprise rent a car company that is the holding company at issue here and apprise run a car company quote the primary business of the company is the renting of vehicles in the united states and it goes on to refer to and other countries on the website the public representations by this defendant the fact sheet states and apprise holdings that tongue with the name probably help parent company of enterprise international alamo now quote owns and operates the largest fleet of passenger vehicles in the world today more than one million cars and trucks the same sheet the fast facts enterprise holdings publishes the state's sixty eight thousand employees on the executive i want to interrupt you apply may because of the discussion so far with my constitutes joy and lawyers now so far as i'm concerned the evidence that it judge conti has assembled rather factor underneath that comes with there are not there are record keeping and whether or not who's got the right well i suppose to hire and fire and promote this sort of thing but we used the term the supreme court actually used the term sufficient control instead of significant control but if i can give you the facts that show the control in this case first the most significant aspects of employment the district court found there's a genuine issue of material fact these significant facts which are the most crucial facts in this case are as the court itself ruled the duties and responsibilities as the providing the job description compensation is the rate of pay for these employees the most critically also the eligibility for overtime exempt status under the f l s a the court found that there was a genuine issue of fact whether what defendant categorizes as recommendations were in fact the facto mandatory that is an issue of fact that the court should not have decided that it is for the trier of fact to determine based on the totality of circumstances are these he critical issues with this in fact a mandatory policy issued by the defendant as reflected in the business practice is god which every employee must sign your honor see i'm out of time we'll ha and that is what is the proper analysis here to determine whether enterprise holdings is the joint employer of the assistant managers employed by its operating subsidiaries and i think where that inquiry begins and ultimately ends is with the secretary's controlling regulations that are entitled to chevron deference by this court at seven ninety one point two c of the regulations as your honor to properly identified the secretary indicates that the keystone of the test is whether the joint employer the alleged joint employer quote unquote shares control of the employee that is precisely the same test that this court adopted for purposes of another remedial statute the national labor relations act in this court's decision in n l r b vs brown in ferrets there too as judge brown indicated the court asked whether the alleged joint employer exerted quote unquote significant control over the same the test your honor and i would respectfully suggest that this court has already given significant guidance as to that test in browning terrace and further that that test is fully consistent with what the ninth or at one circuit didn't buy met where the ninth circuit indicated that the joint employer had quote unquote significant involvement in supervision including in particular establishing the work hours and the quote unquote exact tasks to be performed by the employees at issue  so i do think your honor that all of those tests converge on an inquiry about whether there is significant control being exercised by the alleged joint employer and let me speak to the circumstances here which i think is your honor to properly identified or from the type of control that would take this case out of the presumption that a parent company does not employ its city or his employees here it is undisputed in judge conti thousand that hiring and firing is done exclusively by the subsidiaries there again we have the plaintiff's argument that well you have these three officers of the parent who theoretically have hire and fire authority that is only because if they act in their capacity as the board of directors du hat of the subsidiary they are theoretically can hire and fire at the subsidiary the testimony is uniform that they've never done so what is the rule of the u s wire gram and what is its provenance absolutely thank you for asking you're out of the e s right program is very straightforward and is not an exercise of control by the parent if you venture rented a car to enterprise you might recall at the end of the experience the ask you whether you are fully satisfied the e s q i as a survey administered by a third party firm paid for by the subsidiaries where you were literally asked were you fully satisfied partially satisfied or unsatisfied that results in a customer satisfaction score does it come from no the test is it ministered by a third party firm does the form come from those questions i suppose at their origin it may have been someone at holdings that came up with the idea or could bubbled up from the field there's nothing in the record on that judge and that the record evidence is that each subsidiary the general managers paid six or seven figure c e o salaries to run their subsidiaries all testified uniformly that the role that they give to that score how they use it whether and to what extent it plays a role in promotions is decided by the subsidiary exclusively the only evidence in the record to the contrary is the plaintiff's misquote in their opening brief and they then recognizing the reply that they were in  they say that there's a fortune magazine article they claimed it was a statement by holding c e o mr taylor that e s q i had to be above the area average to be promoted that there's a reporter who said that i don't know why  employees that the there was a question genuine issue material fact as to whether or not those recommendations were mandatory for the district judge did find that your honor in a word is that come into the to the factors and so it seems to me that one of the factors at least weighed in favor of the plans that i think your honor that first of all i believe the district judge was incorrect she did find that there was a genuine issue of mysterious fact about whether that recommendation was mandatory but the evidence that the district court cited was the testimony uniform of the general managers that they made the decision years before and that in two thousand  the parent company made a recommendation that they keep doing what they were doing for example the c e o or the general manager rather paid millions of dollars of the pittsburgh subsidiary testified when he created the pittsburgh subsidiary in  nine he chose to make his assistant managers exempt the fact that sixteen years afterward someone at the parent told him that they thought it was a good idea for him to keep doing what he was doing is not respectfully to the district court a binding recommendation if i told you to keep doing something you decided to do sixteen years ago i didn't make that decision for your honor that's the only evidence in the record that the district judge relied on to say well that creates a material dispute but even if judge that was a disputed fact what the court went on to find was that every single other element where you would look to see the economic reality of the situation where the parent was exercising control where they work directed the court not to grant summer it is not your honor because as the district court did correctly find every single other factor indicates that the totality of the circumstances is such that no reasonable jury could kuku that they were employed by the parent if you compare for example your honor this court's decision in brown in ferris wheel what you had was hiring and firing actually performed by the alleged joint employer he said i'm firing you actual day to day supervision in fact there is one quote that this court takes notice of where he said i am your boss determination of the hours of work the shifts of work and exactly how the work was to be performed those factors indicated the exertion of significant control by the alleged join employer here what judge conti properly found was in a multi factor test where every single factor but one points to that result the district court can properly grant summary judgment as is the case even in the number of the cases cited by my colleagues is the ultimate question of whether or not your client is a joint employer a question of law a question of fact or a mix question i believe that's a mix question your honor it's an application of the law to those facts and i believe that the judge was correct the district court was correct in finding that there were no material disputes as to enough of those that acts that the district court could then reach the legal conclusion that no reasonable jury could find enterprise holdings to be a joint employer and that's because your honor the keystones of employment the hiring firing the hours  which by the way would seem to me to be the most significant issue here if the allegation is that over time it's being worked without compensation wasn't the employer that controls the hours the one that that's really the issue in ind happening there is the application of law to the act and that's clearly what we have here as well there are factual findings to be made the district court made those findings and determined that all of the facts that were material pointed in our favor and that those that were disputed were not sufficient to affect the application of the legal test your honor so let me just speak then to the the remaining elements of that test under browning first and that is who has the authority to hire and fire again that is undisputed that it was only the subsidiaries shot consider the fact that your corporate officers sole control every single one of this city and your honor that's an ordinary incident of the the holy own parent subsidiary relationship that would be true of thousands of employers or out the country the fact that asking it whether it's just on whether agreeable type factors yes it's inappropriate considering i don't think it is your honor it is an appropriate consideration if we were looking at an integrated employer case and there's a separate form factor test there that's not a test being advanced before this court for this particular case here i think even in the reply br plaintiffs make clear that they are not arguing that by virtue of their services officers and directors of the subs they somehow control the parent somehow controls the subsidiary because that's clearly rejected in the case law and i think what is particularly instructive there and that is does the parent step beyond the normal parent subsidy or relationship in order to control the employment of the alleged jointly employed employees so it's not  saying that formal authority should not count only actual authorities of your size of a yes in particularly in the parents of context your honor because the only way that the parent officers have formal authority is by virtue of their service as directors of the subsidiaries this court and many courts including the supreme court have recognized that the dual hats doctrine makes a clear that's not an act of the parent they can and do serve in both capacities and in this case you can see that application because the testimony is uniform that even in their capacity as directors of the subsidiary never once did the officers of the parent intervene in any significant aspect of the employment of assistant branch managers all the general managers testify consistently to that and again when you take a step back and say well we're looking at the reality of the situation who exerted substantial control that's clearly the case that they're paying the general managers who whether or not there is theoretical power in their dual capacity a subsidiary directors is irrelevant to the economic reality of the situation is the parent making employment decisions that exert significant control over assistant managers the reality of the answer to that question is clearly no it's not the general managers who are several levels above the assistant managers have full and complete authority and delegate that even to their subordinates every pla testify consistently as judge conti noted that no one from st louis had anything to do with any aspect of their employment for them to come in now and say that the reality of the situation was that the st louis parent corporation somehow exerted significant control of their employment is completely at odds with the record that's before the district court and before this court that's an application of the economic reality test your honor it's not formalistic it's what is happening in the real world what is happening the real world is a subsidiary hire they fire they set the work hours they decide where you're going to work they tell you what the duties to be performed are they make every single significant decision even if you look in judge conti's findings of fact although she indicates that there are a number of issues related to compensation that are in dispute the only thing she's really finding in dispute is that two thousand and five recommendation because if you go earlier to page fourteen and fifteen of her decision she finds clearly that compensation is determined by the general manager's they can vary from the guide and do without permission she finds that job descriptions are not mandatory that general manager nettles from pittsburgh doesn't even use the recommended job description all of those things are controlled solely and exclusively by the only employer that's at issue here your honour's the subsidiary corporation i know you answered judson this question that there wasn't any real distinction between what you're advocating but i'm interested in your assessment of the second circuit's to the one nine hundred ninety nine solution where the referred to it as economic realities yes we're looking for a test to establish and to apply and should it be called that and you know you're saying any differences but yes or not reaction on her i think that it is fair to say that the overall objective what we're trying to determine is the economic reality however in this context i think that the courts test needs to be grounded in seven ninety one point to see which refers to the exercise of control that is the test that is govern that is in the and i don't i don't disagree with this is that the test has to be flexible depending upon the reality of the situation so for example if you're talking about independent contractor employees or laborers who are supplied from one f to another and everyone's disclaiming them even browning ferrous where you had the trucking brokers who were employing allegedly independent contractors there are other facts that are clearly well and so so the the four by now factors in themselves may not be and that's correct your honor i think in the parent subsidiary context a lot of the factors that are used by other courts are not relevant you know to the extent they are they all point in our favor right the parent doesn't supply the tool when it is applicable where you're trying to decide which i would argue your honor the browning ferrous is applicable in that the net is consistent with that and again in the net you have control over the exact tasks and the hours in which they're performed as well as the authority to hire and fire these home workers none of those factors are present here those things make a reality where the state welfare agency was employing those home workers here you don't have that reality let me ask judge going to do you have questions miss words before we move she was very thank you your honor all our position is that even if that finding of fact was upheld by this court all of the other factors this judge co found were so dispositively in our favor that no reasonable jury could find that a company that did not control those key aspects of employment could be deemed to be a joint employer s is clear by comparison for example to the facts of browning ferrous so our position is even though that that that particular aspect of the decision was in error even if you disagreed with me you should affirm the district court's decision because the district court's ultimate conclusion that all of those other factor so honor with respect to the question whether the multi factor test or a test should consider whether the same managers control the parent and the subsidiary it absolutely should be a consideration by this court there is no greater control of the subsidiaries than having the c e o the chairman the c f o who control the parent company who are the sole boards of directors on the boards for each of the subsidiaries and are the sole l l c managers to the extent that defendant claims that it makes recommendations to the subsidiaries the jury should hear is try to faction here their recommendations from the same three individuals ruling the parent who also rule and have the ultimate authority over all the subsidiaries counsel pointed to with respect to whether this is an issue effect for the court defense counsel cited to the alvarez pres case notably the eleventh circuit now has pres that case came to the eleventh circuit after a jury trial and a finding on the issue of whether or the party was a joint employer for the f l s a similarly in the works vs pure ice the eighth circuit that's another case that was relied upon by defendants in their briefing notably there was a trial on the issue of whether the defendant was an employer that issue went up onto appeal ultimately the court reversed the finding on appeal because the evidence was that the employer quote had nothing to do with the hiring of the employees or the fixing of their wages or hours he was simply an investor he was not involved with the business significantly in that case the court stayed quote if we had here a combination of stock ownership management direction and the right to hire and fire employees and a contrary conclusion would be well supported your honor that's precisely what we have this case we have the stock ownership we have the common management as we've pointed out the direction in the right to hire and fire employees yawners in the business practices guide the evidence in this case is that all defendant well the court found all the defendant operating subsidiaries however followed the recommendations and guidelines created by the defendant in that in the business practices guide including the decision to classify system branch managers each employee and the evidence a dash one one thousand seven plaintiffs statement of fact defendant requires the assistant managers to receive any read the business practices guide and sign an acknowledgment of terms and conditions which states that the employee quote i acknowledge that i have read and understand the practices policies and benefits addressed in the book including the acknowledgment section and agree to its terms and conditions that business practices guide specifically states that defendant the parent company quote reserved the right at its sole discretion to make and implement decisions regarding employees position compensation and other terms and conditions of employment including retention your honor there is no greater exercise of control over these plaintiffs in the question of fact found by the court with respect to their job description that decides what they do want to daily basis that is the issue here what are they doing what are their responsibilities how are they paid defending creates the compensation guide the evidence on  sets the salary ranges for all branch employees including this is that managers so we've got the job description what they do how they are to be paid and then the ultimate issue of how they're going to be classified defendant states that there was a meeting in two thousand and five and wants to downplay the significance of that you're on is the record indicates during the two thousand and five meeting defendant changed the parent company their term is a recommended they recommended that california change the classification of these assistant managers doing the very same job that they do in the rest of the country and recommended that the rest of the company rest of the country keep the classification as exempt present at that meeting your honor your honor the court the court should consider the common management and control the court must look to hear with respect to the regulations counterpoint to subsection three concerning sharing control directly or indirectly also subsect in or whether the employer is acting directly or indirectly in the interest of an employer based on the evidence in this case the trier of fact should determine based on the totality of circumstances with the strong evidence we have here whether or