On Monday, we wrote about the Save Local Business Act — proposed legislation that, if passed, would create a new definition for joint employment under the NLRA and FLSA. But would that law go far enough?
No. Not at all.
On the bright side for businesses, the law would provide some predictability in that staffing agency workers would most likely be excluded from bargaining units. It would also remedy the current unfairness that results when a staffing agency makes payroll and overtime miscalculations but the company using the workers is held responsible as a joint employer.
But much more needs to be done to provide real clarity and predictability for business owners.
First, the law fails to address who is a joint employer under other federal employment Continue reading
The Family and Medical Leave Act (FMLA) is already one of the hardest employment laws to comply with. Add joint employment into the mix, and the level of difficulty further increases.
Here are some pointers for handling FMLA issues when joint employment is likely to exist:
Issue 1: Is there Joint Employment?
To determine whether two companies are joint employers under the FMLA, the Economic Realities Test is used. This is the same test used under the Fair Labor Standards Act (FLSA). (See this post for a recent development that threatens to expand the definition of joint employment under the FLSA.)
The DOL has advised that in most staffing agency relationships, there is joint employment.
Issue 2: How Does Joint Employment Affect An Employee’s FMLA Eligibility?
The FMLA is full of traps for companies who use staffing agency workers, both for staff augmentation and temp-to-hire. Here are a few of the most common mistakes and how to avoid them:
1. Mistake: Not counting staffing agency time as service time, when determining whether the worker has worked for 12 months.
Tip: Staffing agency time counts. Add staffing agency time plus regular employee time to determine whether the worker has 12 months of service time. Accumulate all time worked during the past seven years. Continue reading
With a finding of worker misclassification, the workers you thought were not your employees are suddenly deemed your employees. What does that mean practically? It means that you have not been complying with all of the laws that apply to employees.