The tests for determining whether a business is a joint employer vary, depending on which law applies. That means there are different tests under federal labor law, wage and hour law, and employee benefits law, to name a few. There are also different tests under different states’ laws.
Further complicating the analysis, there are even different tests when applying the same law — depending on where you live.
Yes, you read that right. Even though the Fair Labor Standards Act (FLSA) is a federal wage and hour law that applies across the country, federal courts in different states use different methods for determining whether a business is a joint employer under that single law.
Same for Title VII. Although this federal anti-discrimination law applies to businesses coast-to-coast, a business can be deemed a joint employer under Title VII on the West Coast and not on the East Coast. Or vice versa. Or yes in Virginia, but no in Pennsylvania. Huh?
(Heiser testified recently before a Congressional committee on the need for legislation to clear up the confusion.)
The map shows that, depending on where in the U.S. you live, the test for determining whether you are a joint employer varies under the FLSA (color) and under Title VII (pattern).
The map illustrates quite nicely how difficult it is for multi-state employers to determine whether they have responsibilities as a joint employer or not. Editor’s Note: Alaska and Hawaii are not to scale. All U.S. maps are required to say that under federal law. Or not, depending on where you live.
© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.