The 1980 Double Fantasy album is meh, featuring alternating tracks by John Lennon and Yoko Ono. But there’s at least on gem on that album, and it’s the very first track: “(Just Like) Starting Over.” The song was originally titled “Starting Over” but the parenthetical was a late addition, reportedly inserted to make sure listeners knew this wasn’t Dolly Parton’s country music chart topper from the same year, “Starting Over Again.” Not that anyone has ever confused John Lennon with Dolly Parton, but I get it.
President Biden’s policy on joint employment is already embracing the same theme, even before Marty Walsh gets confirmed as Secretary of Labor. The DOL ain’t wastin time no more. (And speaking of the Allman Brothers, if you haven’t yet seen the documentary Jimmy Carter: Rock N’ Roll President, it’s worth 96 minutes of your time.)
Late last week, the DOL announced it has submitted a new proposed rule for determining joint employer status under the Fair Labor Standards Act (FLSA). The text of the proposed rule has not yet been released, but here’s what we know:
1. The new rule would replace the regulations enacted by the Trump DOL in March 2020. The March 2020 regulation required actual control for a finding of joint employment and focused the joint employer analysis on four factors — right to hire/fire, supervision of work conditions or schedules, rate/method of pay, and control of personnel files. That test made it tougher to establish joint employment.
The March 2020 regulations are already the subject of litigation, and the Second Circuit Court of Appeals is hearing a case to decide whether the new rules are valid. That means the March 2020 rule could be on the chopping block no matter, with either the Second Circuit or the Biden DOL doing the chopping.
2. The new rule will be (just like) starting over. It will re-adopt an Obama-era joint employment test. But which one?
Before the March 2020 rule requiring actual control, all that was need to be a joint employer was the right to control certain aspects of the relationship.
When using a staffing agency for staff augmentation, for example, there was a pretty high likelihood that would be joint employment, even if the staffing agency had exclusive control over the four factors highlighted in the March 2020 test — setting wages, setting schedules, controlling pay, and maintaining personnel files. At a minimum, the new rule will go back to that standard.
But there’s a worse option that could be in the cards. Five states are bound by a 2017 federal appeals ruling that adopts a much broader interpretation of joint employment. In a case called Salinas, the Fourth Circuit ruled that two businesses are joint employers unless they are “completely disassociated” from one another. The Fourth Circuit covers MD, NC, SC, VA, and WV. That decision suggests that every borrowed labor situation might automatically be joint employment, since the two companies have a contractual “association” with each other.
The Salinas decision was based on an old regulation, on the books since 1958, that the March 2020 regulation eliminated and replaced.
Which version of joint employment will the new Biden rule seek to adopt? Or will the DOL come up with a new test entirely?
Either way, we know that the test for joint employment will change in 2021 or 22, and the new rule will make it much more likely that staffing agency relationships and other borrowed labor arrangements create joint employment.
While the specifics of the new test are not yet known, we know enough already to start to plan. Staffing agency agreements should be checked and revised to protect against joint employment liability. This post provides a few of my favorite tips.
There are plenty of steps that can be taken to protect against joint employment, so long as businesses plan ahead and draft their contracts carefully. Change is coming, but we’ve been down this road before. It’s (just like) starting over.
© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.
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