As businesses seek to generate revenue and mitigate risk, they must ask the simple question “who are my employees” and proceed with awareness that the answer is a product of complex employment laws and regulations, and the particular circumstances of the workforces that they design and directly or indirectly operate.
One of the basic questions in any employment litigation is whether the defendant is covered by the statute upon which the plaintiff’s lawsuit is based, such as the nondiscrimination provisions of Title VII of the Civil Rights Act of 1964; the time off provisions of the Family and Medical Leave Act; or the plant closure and mass layoff notice requirements of the WARN Act.
Businesses are asking, “Will courts regard individuals who are not on my payroll as my employees?”
They are asking in light of news coverage of NLRB proceedings involving whether a fast food franchisor is the “joint employer” of individuals who work within its franchisees. The NLRB has not decided whether to amend its joint employer test as its general counsel now proposes. Moreover, statutory definitions of “employer” and “employ” differ in various labor and employment laws; courts need not apply NLRB rulings in deciding “joint employer” issues in discrimination or overtime cases.
Many more developments will follow at the NLRB and in the courts regarding changes to the “joint employer” doctrine that the NLRB’s general counsel has proposed in the context of collective bargaining. Outside that context, “joint employer” status still has very important practical implications.