In addition to all the other labor and employment updates in the law of the last week, the issue of “joint employment” has gone through an official transformation this past week.
The issue of Joint Employer arises frequently in Fair Labor Standards Act (FLSA) cases when employees seek to hold more than one “employer” liable for overtime and other wages claimed to be owed. Oftentimes, the question of whether entities can be considered joint employers is uncertain and differs from court to court. In an effort to clarify the matter, the Department of Labor (DOL) has adopted a four-factor balancing test to determine joint employer status that is focused on decision-making (did the alleged employer have the right to hire and fire the employee?), supervision (did the alleged employer substantially control the conditions of employee’s employment?), payment (did the alleged employer set the employee’s pay?) and record-keeping (did the alleged employer maintain employment records?).
As with all balancing tests, no one factor is more important than the other. The questions becomes whether, on balance, the employee performed work that benefitted more than one employer, and additional facts relevant to this inquiry may also be considered.
This final rule quietly went into effect on March 16, 2020 but was understandably overshadowed by critical issues surrounding COVID-19.
Important to note that this rule is only applicable to joint employer issues arising under the FLSA and not to other federal laws impacting employment such as Title VII of the Civil Rights Act.
More information about the new rule can be found at https://www.dol.gov/agencies/whd/flsa/2020-joint-employment.
Of course, feel free to contact me if you have any questions.
Ellen M. Leibovitch
Board Certified Labor & Employment Lawyer
ASSOULINE & BERLOWE, P.A.
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