Map Shows Joint Employment Tests Are a Mess!

IMG_8284The 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?

We’ve discussed this complication in other posts — such as here and here — but not in graphic form.  Thanks to Richard Heiser, who is in the Legal Department at FedEx Ground, we now have this beauty!

(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.

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Four FMLA Traps When Using Temp Workers — and How to Avoid Them

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:

fmla-danger-cliff-caution-2

photo credit: ransomtech Chimney Bluffs State Park via photopin (license)

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

Can You Pay a Contractor Overtime? Should You?

independent-contractor-questionsLet’s talk about good old-fashioned 1099 Independent Contractors — you know, those individuals who are happy to be called contractors until they’re released and then decide they should have been treated as employees.

When retaining a contractor, one of the goals, of course, is to ensure that the contractor is properly classified and is not really (factually) an employee. A secondary goal, however, is to limit liability if the contractor is misclassified.

Today’s question sits at the intersection of these two goals. Continue reading

You Knew College Athletes Weren’t Employees, But Did You Know Why?

college-athletesYou knew that college athletes were not employees of their schools, but did you know the legal reason why?

Let’s look at a recent case that arose under the Fair Labor Standards Act (FLSA).

In early 2015, a group of student-athletes sued several schools and the NCAA, alleging that they had put in thousands of hours of work for the benefit of their school, without compensation. The student-athletes alleged that they should have been paid at least a minimum wage, as required under the FLSA.

Continue reading