By Susan Schoenfeld, JD
In early 2016, the Wage and Hour Division of the U.S. Department of Labor (DOL) released an Administrator’s Interpretation addressing joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In conjunction with this release, the DOL also issued a new fact sheet on the Family and Medical Leave Act (FMLA) and joint employment.
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The new guidance from the DOL identifies common scenarios in which two or more employers jointly employ an employee and are, as a result, jointly liable for compliance. The interpretation and fact sheet compile statutory provisions, regulations, and case law to provide comprehensive guidance on joint employment under FLSA, MSPA, and FMLA so that employers can properly analyze a potential joint employment scenario.
Joint employment exists when an employee is employed by two or more employers such that the employers are responsible for compliance with the FMLA. The analysis for determining joint employment under the FMLA is the same as under the FLSA.
Joint employment exists where two or more employers benefit from the employee’s work and are sufficiently related to or associated with each other. For example:
- The employers have an arrangement to share the employee’s services;
- One employer acts in the interest of the other in relation to the employee; or
- The employers share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.
The focus of joint employment is the degree of association between the employers.