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解密谁是共同雇主

2017年10月20日

If your company uses contract labor or temporary staffing, recent agency actions and court decisions may have turned your company into a joint employer who is legally responsible for its contract workers’ overtime pay.  传统上, companies were not considered joint employers unless they had direct control over the wages and other conditions of employment of another company’s employee.  然而, Obama-era agency actions significantly broadened the scope of what may be considered joint employment.

The assault on the traditional standard began in August 2015 when the National Labor Relations Board (“NLRB”) issued its decision in Browning-Ferris行业 (BFI).  That decision revised the joint employer standard with regard to labor unions to make it easier for a company to be considered a joint employer of workers who are directly employed by another company.  BFI下, companies could be considered a joint employer of another’s workforce if they had potential control over the employees’ working conditions, 即使他们没有行使这种控制权. 另外, BFI established that a company could be a joint employer even if the control was exercised “indirectly,例如通过中介. 

2016年1月, the Department of Labors’ Wage and Hour Division (“WHD”) followed the NLRB’s lead and issued an Administrative Interpretation that set new standards for determining joint employment under the Fair Labor Standards Act (“FLSA”).  The WHD stated, “The concept of joint employment… should be defined expansively under the FLSA.”  The agency claimed that in making a determination it would look to the “economic dependence” of the worker on the company, and not simply at the company’s “control” over the worker, 这是普通法的传统.  事实上, the WHD indicated that a company could be considered a joint employer even when it “exercise[s] little or no control or supervision over the putative employees.”

2017年1月, the Fourth Circuit Court of Appeals in Richmond added to the confusion by creating a new hybrid test for determining joint employment under the FLSA.  In 萨利纳斯五世. 商业室内设计公司. the court looked to DOL regulations to establish a six-factor list covering everything from “directly or indirectly” modifying the conditions of the worker’s employment to the duration of the relationship with the worker.  The court stated that these factors are not exclusive and that a finding under a single factor could be enough to establish joint employment.

Businesses have been justifiably concerned about these new, broader joint employer standards.  通过建立新的规则, these decisions could result in employers being on the hook for overtime for “employees” they never knew they had.

Recently, however, the pendulum has begun to swing back toward the traditional standards.  In June, the Trump 政府’s DOL rescinded the Obama-backed Administrative Interpretation.  Now that Republicans have recently regained control of the NLRB, many observers believe it is only a matter of time before the NLRB revisits the “indirect test” and overturns Browning-Ferris行业.

It now appears that Congress may weigh in on the issue, as well.  7月,众议员. 布拉德利·伯恩(阿拉巴马州共和党.) introduced House Resolution 3441, known as the “Save the Local Business Act.”  The Act would roll back the recent changes to the law by limiting joint employment under both the NLRA and FLSA to situations where a person “directly, 实际上, 并立即, 而且不是以有限和常规的方式, exercises significant control over the essential terms and conditions of employment (including hiring employees, 卸货的员工, determining individual employee rates of pay and benefits, 对员工的日常监督, 分配个人工作时间表, 职位, 和任务, 管理员工纪律).”  The House Committee on Education and the Workforce recently held hearings on H.R. 3441票,以23票对17票通过了这项法案.

Whether we see a return to the traditional control test or not, employers should take particular care when it comes to their relationships with staffing agencies and independent contractors.  By auditing these relationships and revising contractor and agency agreements where necessary, 雇主可以避免以后的责任.

杰夫•威尔逊 是彭德律师事务所的劳动雇佣律师 & 皇冠线上买球平台 who is happy to answer questions about joint employment or other employment-related matters. 联系 Jeff at (757) 502-7341 or jwilson@teenatatom.com.

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