Yesterday, the Wage and Hour Division (WHD) of the U.S. Department of Labor released new guidance called an “Administrator’s Interpretation” (AI) that expansively defines joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
The guidance identifies common scenarios where the WHD would consider an employee to be jointly employed, and therefore both employers are jointly liable for wage and hour law compliance. The AI was deemed necessary as a result of “continual changes in the structure of workplaces,” and WHD’s view that a worker is jointly employed by two or more employers has become more common in recent years. WHD will decide if a joint employment relationship exists in FLSA and MSPA cases, particularly if (1) the employee works for two employers who are associated or related in some way with respect to the employee; or (2) the employee’s employer is an “intermediary employer” (e.g., a farm labor contractor or other agency that provides labor to another employer.)
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