On Tuesday of this week, Judge Gregory Woods of the U.S. District Court for the Southern District of New York ruled that portions of the Department of Labor (DOL) regulation on the issue was “arbitrary and capricious” and in conflict with the Fair Labor Standards Act (FLSA). New York v. Scalia, in which 17 different state attorneys general (all democrat elected officials) joined together to challenge the Trump administration’s joint employer regulation. In his decision, Woods found the DOL test for vertical employment – that being when a worker joins one company (such as a staffing agency or subcontractor) but is economically dependent on another employer – to be “impermissibly narrow” in that an employer must actually exercise the power to control rather than just possess the power to do so. Other than to verbalize its “disappointment with the decision”, DOL did not give any direction as to whether it will appeal the decision in the future. Notwithstanding, a number of business groups including the International Franchise Association (IFA), the National Retail Federation (NRF) and the U.S. Chamber of Commerce, all of which have been approved by the court to act as intervening interests, have expressed interest in appealing the decision.