A new “Administrator Interpretation” (AI) issued by the Department of Labor’s Wage and Hour Division (WHD) takes a decidedly expansive view of how joint employment occurs under the Fair Labor Standards Act (FLSA), as well as the Migrant and Seasonal Worker Protection Act (MSPA).
According to the January 20, 2016 AI, which is signed by WHD Administrator David Weil, two or more employers can be found to be responsible for complying with the laws’ requirements, with respect to a given worker, if the employers either are sufficiently associated with each other, or if the worker shows signs of economic dependence on them.
WHD’s expansive approach involves not just making the joint employer determination based on whether a business has control over the work performed by a given worker – as some courts do – but also weighing whether the worker depends on the business for his or her livelihood.
That all said, the AI does not break new ground from previous Labor Department pronouncements regarding its view of joint employment, nor does it create new requirements for employers. Nevertheless, it sends a clear signal that WHD intends to enforce its interpretation, and comes at a time when the agency is claiming that U.S. businesses are increasingly using new staffing models, including sharing employees and using staffing agencies, to avoid FLSA and MSPA compliance.