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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Appeal of New Hampshire Department of Environmental Services

Docket: 2018-0650

Opinion Date: May 22, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

Petitioner New Hampshire Department of Environmental Services (DES) appealed a decision by the New Hampshire Wetlands Council remanding an administrative order issued by DES that directed respondents Bryan and Linda Corr to cease and desist unpermitted work on their lakefront property. The Corrs owned property in Moultonborough located on the shore of Lake Winnipesaukee. When they purchased the property, it contained a dry boathouse, positioned approximately two feet from the shore, which was partially collapsed as a result of snow load. The boathouse was considered a “grandfathered” or nonconforming structure for purposes of the Shoreland Protection Act. The Corrs made plans to replace the boathouse. They hired a land use consultant to assist them with the process, which required approvals from the Town of Moultonborough, as well as DES. After obtaining the building permit from the Town and the PBN from DES, the Corrs commenced construction. They spent over $100,000 on the permitted structure. When the structure was framed and nearing completion, DES visited the site to conduct an inspection, purportedly in response to a complaint the department had received. Subsequently, DES issued a Letter of Deficiency to the Corrs informing them that the structure was 27 feet tall, and therefore not compliant with DES regulations. The Corrs appealed DES’ administrative order to the Council. In their appeal, the Corrs raised four alternative arguments as to how DES had acted unlawfully and unreasonably in issuing its order. The New Hampshire Supreme Court agreed with the Corrs that DES did not have the authority to limit the height of their structure. The COurt affirmed the Council's decision to the extent that it concluded that a 12-foot height restriction did not apply to the Corrs’ structure. However, the Court vacated all other aspects of the Council’s decision, remanding with instructions to grant the Corrs’ appeal and to vacate DES’ administrative order, which relied solely on the alleged height violation. In light of the result reached, the Court did not address any additional arguments raised by the parties.

O'Donnell v. Allstate Indemnity Company

Dockets: 2018-0706, 2018-0706

Opinion Date: May 22, 2020

Judge: James P. Bassett

Areas of Law: Contracts, Insurance Law

Plaintiff John O’Donnell appealed a superior court order granting summary judgment to defendant Allstate Indemnity Company. Following a November 2015 motor vehicle accident, O’Donnell filed an underinsured motorist claim under a personal umbrella insurance policy that he had purchased from Allstate. Allstate denied the claim. O’Donnell then filed this declaratory judgment action to determine whether his policy provided uninsured motorist coverage. The trial court concluded that O’Donnell’s policy did not provide uninsured motorist coverage, finding that a written waiver of uninsured motorist coverage that O’Donnell had executed in September 2011 remained in effect at the time of the accident. Finding no reversible error in that judgment, the New Hampshire Supreme Court affirmed.

Favart v. Ouellette

Docket: 2019-0197

Opinion Date: May 22, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Real Estate & Property Law

Plaintiff Edward Favart appealed a superior court order ruling that land owned by defendants Steven and Kevin Ouellette, benefitted from an implied easement over plaintiff’s land along a fifteen-foot wide access road to the “beach area” of Sip Pond depicted on a 1992 subdivision plan. The court further ruled that installation and use of a dock was a reasonable use of the easement. We affirm in part, reverse in part, and remand.The New Hampshire Supreme Court concluded that the superior court erred in relying upon “the evidence of the existence and use of prior docks in the area.” Plaintiff argued there was no evidence that a dock had ever been installed on the beach area of Lot 8, and thus defendants' dock was not within the scope of the implied easement. To this, the Supreme Court agreed, and reversed that part of the trial court judgment. The Supreme Court affirmed in all other respects.