The Fair Labor Standards Act (FLSA) is a federal law that outlines various rules and regulations relevant to employment in America; one of the employment classifications covered by the FLSA is joint employment.
What is Joint Employment?
An individual is considered to work under a joint employment scheme when they are hired into an organization and work for more than one company or agency. Often a joint employment scheme occurs when an employee was brought on to a company in a specific capacity and then through their original employer are led to work for another company. Subcontracting is another common term used to denote this type of employment situation. Other examples of joint employers include companies that are closely related and share common policies or owners of companies that make decisions as to policies and implementation for a company.
How does Joint Employment Affect Employees?
At the beginning of 2020, the Department of Labor issued new rules on joint employment. These rulings are important as they provide insight on how and when employees can pursue action against employers who are abusing these guidelines. Employers with joint-employer status maintain the ability to fire and hire employees, make employee schedules, set employee pay rates, and keep records. If both employers are considered joint employers, both employers must have the ability to make these decisions. If only one employer fits these standards, but the secondary employer takes advantage of an employee’s time and does not properly compensate the employee, there may be a violation. These complex standards get increasingly more difficult to parse through when an employee requests leave under the FMLA.
FMLA Rights
When considering how employers must comply with the FMLA, figuring out which employer is the primary and secondary is crucial. Specific responsibilities are designated to each employer in a joint employment situation, and employees should be protected by these guidelines.
Primary employers in a joint employment arrangement must:
- Approve an employee’s request for FMLA
- Continue providing insurance benefits to the employee on FMLA
- Upon an employee’s return, continue to employ them in the same capacity or a similar capacity with penalization
- Maintain proper documentation
Secondary employers in a joint employment arrangement must:
- Permit FMLA benefits to qualifying employees
- Maintain proper records during an employee’s FMLA, including payroll and other identifying data
- Upon an employee’s return, give the employee their job back or a similar position without penalization
Most importantly, an employee should remember that an employer cannot retaliate against individuals who request or take FMLA.
How Might This Affect Employment during COVID-19?
Like with many areas of employment law, the laws surrounding joint employment may become difficult to interpret during the COVID-19 pandemic. Some employees may find their workplaces shifting to this model to avoid reopening. Know your rights and stay vigilant during these trying times. Contact an FMLA attorney if you believe your employers are abusing this model.
Uber Eats and the Pandemic Economy
Uber Eats and the Pandemic Economy
Armin Samii, a computer programmer who has been working part-time for Uber Eats, claims to have found evidence that the food delivery service has been routinely underpaying its drivers. Uber Eats’ policy is to pay its delivery works on a per-mile basis. This is the standard within the food delivery industry. However, according to a Google Chrome extension, “UberCheats,” built by Samii, Uber has allegedly been regularly shorting its delivery workers on 25-30% of trips, according to Salon.
Samii created this extension after an experience he had with Uber in which the food delivery company admitted to him that, because of a bug on Uber Eats’ end, he was not properly paid for his full delivery. Samii collected data from around 160 Uber Eats drivers through his extension. Through this, he estimates that Uber has underpaid workers on approximately 21% of trips, per Business Insider. To this end, Samii’s data shows that Uber Eats’ delivery drivers are being underpaid by an average of 1.3 miles on those approximately 21% of trips. This finding of routine underpayment by Uber, as well as Uber’s own admission that a bug does, in fact, exist within the delivery tracking method, is potentially disconcerting to Uber eats’ delivery drivers across the country.
What Changed?
Amid a global pandemic, the need for has become apparent to many. The potential that such automation is shorting employee wages on a regular basis is worrisome and harmful as our economy continues to grow and change. In recent months, more people have begun to rely on food delivery services to avoid exposure to illness, increasing the demand for delivery drivers in the food service industry. Competition has increase as the food delivery industry has become more crowded and ever more necessary. No worker, including the gig workers we have become reliant on during the pandemic, should fear that their employer is intentionally paying them less than they are owed. The increased competition and demand for delivery service is an additional stressor, and improper payment for services is detrimental to the livelihood of this workforce.
-Jacob Mikalov for Barkan Meizlish, LLP