DOL proposes overhaul of Joint Employer rules

Following up on recent efforts by the NLRB to overhaul the Joint Employer doctrine, the DOL has proposed its own revisions.

Like the NLRB, the DOL proposes that the right to control not be considered, but rather that focus be on whether the putative joint employer actually has exercised control.

Only actions taken with respect to the employee’s terms and conditions of employment, rather than the theoretical ability to do so under a contract, are relevant to joint employer status under the Act.

Additionally, the DOL proposes to clarify that “whether an employee is economically dependent on the potential joint employer is (also) not relevant.”

Rather, the DOL suggests that four factors be considered to determine whether the putative joint employer exercised sufficient control, in actuality, to warrant liability:

The Department’s proposed test would assess whether the potential joint employer:

• Hires or fires the employee;

• Supervises and controls the employee’s work schedule or conditions of employment;

• Determines the employee’s rate and method of payment; and

• Maintains the employee’s employment records.

Source: DOL proposed rules re “Joint Employer Status Under The Fair Labor Standards Act,” 29 CFR Part 791, RIN 1235-aa26 (4/1/19).