Need to Know: What is Joint Employment?

Barkan Meizlish , July 14, 2020

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.


Jessica Doogan

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