In case you missed it, on January 20, 2016, the U.S. Department of Labor (“DOL”) issued new guidelines on joint employment under the Fair Labor Standards Act and the Migrant Seasonal Agricultural Worker Protection Act. The guidance can be found here. Although the Administrator’s Interpretation does not have the force of law, it provides helpful guidance and examples of the DOL’s opinion about what factors apply in determining when two or more employers may have “joint employment” liability to pay wages and overtime to particular employees.
This “joint employer” issue is most common in two scenarios covered by the guidelines: (1) horizontal joint employment, where two or more entities have common ownership or management, and exercise joint control over the work of the employee(s); and (2) vertical joint employment, where one employer serves as an “intermediary employer” – often a temp agency or subcontractor – for another employer that exercises direction and control over the work performed.
Given that this is an area of emphasis with the DOL, employers should check their existing practices and agreements to identify and deal with any potential exposure.
Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.