We’ve Got Baby Steps Toward a New Definition of Joint Employment Under the FLSA.

Baby steps joint employment FLSA new rule

I still don’t know what this is, but I got it from Wikipedia.

According to Wikipedia, which knows everything, or thinks it does, Baby Steps is the name of a Japanese manga series by Hikaru Katsuki. I have no idea what that means, but apparently it’s a story of some sort, which I infer from the following description: “The story is centered on Eiichirō Maruo, a first year honor student who one day decides that he is lacking exercise.”

This does not make me want to watch it.

I will, however, be watching the baby steps being taken by the Department of Labor’s Wage and Hour Division (WHD). On February 28, the WHD submitted a proposed new rule on joint employment to the White House Office of Information and Regulatory Affairs (OIRA). The new rule would modify the meaning of “joint employment” under the Fair Labor Standards Act (FLSA), which is the federal law governing minimum wage and overtime requirements.

This submission is the first step before a proposed new rule is formally presented to the public for notice and comment. You’ll recall this is the same process the NLRB is pursuing to try to revise the definition of “joint employment” under the National Labor Relations Act. But the NLRB is much further along.

The notice of submission (viewable here in all its glorious lack of specificity) tells us nothing about the content of the proposal.

We can make a fairly good guess though. As detailed here, the NLRB is proposing a regulation that would narrow the meaning of joint employment under federal labor law. Under the NLRB proposal, there would be no finding of “joint employment” unless there’s a showing of direct and substantial control over essential terms and conditions of employment. It would be much harder to prove joint employment.

The proposed new rule for joint employment under the FLSA is likely to be the same.

A little bit of consistency across the statutes would be a welcome change from the hodgepodge of rules, test, and standards we have now.

We can expect additional baby steps toward a new definition of “joint employment” under the FLSA. But I would not hold my breath for a new manga series. Whatever that is.

© 2019 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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For more information on joint employment, gig economy issues, and other labor and employment developments to watch in 2019, join me in Chicago on Mar. 21 for the 2019 BakerHostetler Master Class on Labor Relations and Employment Law: Meeting Today’s Challenges. Advance registration is required. Please email me if you plan to attend, tlebowitz@bakerlaw.com. If you list my name in your RSVP, I will have your registration fee waived.

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