As we head into fall 2020, many advertising companies are beginning – if they have not already done so – to restart media shoots. Just as they did before the pandemic hit, media shoots raise a broad swath of questions on the employment law front. One of the principal issues in this regard is the question of which entity(ies) is considered the talent’s employer.
This is a particularly important issue because of the so-called “joint employer” doctrine, which refers to a situation whereby a worker is deemed employed by more than one entity at the same time. If multiple entities are considered joint employers, they can then generally each be held jointly and severally liable for workplace violations (e.g., discrimination, harassment, retaliation, unpaid wages). The joint employer doctrine is often invoked in the advertising and media space, and can result in unforeseen corporate liability.
To that end, earlier this year, the U.S. Department of Labor (DOL) issued a rule updating its interpretation of the “joint employer” doctrine under federal wage and hour law. On September 8, 2020, however, a New York federal judge struck down a significant portion of the rule. Judge Gregory H. Woods’ 62-page decision delivers a significant blow to businesses that had relied on the business-friendly nature of the DOL’s new rule.