On Jan. 20, the U.S. Department of Labor (DOL), Wage and Hour Division Administrator David Weil released a detailed Administrator’s Interpretation (AI) and related guidance on the definition of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).  The new DOL guidance comes on the heels of recent, controversial expansion of the joint employer definition by the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA). According to the new DOL guidance, joint employment occurs “when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statute.”  In keeping with this broad definition, the AI provides multifactor tests to assist with the identification of horizontal and vertical joint employment, its two most common forms. The AI also gives examples of several industries, including construction, in which joint employment is likely to arise (e.g., workers who work for a sub-contractor and possibly a general contractor). 

Administrator Weil’s interpretation emphasizes the breadth of the joint employer definition and indicates that responsibility for FLSA and MSPA wage and hour obligations, including overtime compensation, is likely to expand to a greater number of secondary employers.  Because the DOL’s overtime final rule – expected July 2016 – is set to expand the number of employees eligible for overtime compensation, this guidance provides timely information for prospective joint employers to consider. 

The guidance also addresses joint employment under the Family Medical Leave Act (FMLA).  See this DOL fact sheet for more information. 

For a detailed summary of the AI, see this article by ABC’s General Counsel Littler Mendelson, P.C.