The healthcare setting involves many potential “joint employer” landmines, as hospitals often have outside vendors providing services (i.e. food service, laundry service) inside their facilities. Employment and labor law is in flux regarding the “joint employer” standard. See (NLRB’s Proposed Rule Adopts Pre-Browning-Ferris Joint-Employer Standard); (Department of Labor Proposes Updated Interpretation of Joint Employer Standard Under the FLSA). The proposed rules published by the National Labor Relations Board and the U.S. Department of Labor indicate it may be more difficult, going forward, for employees and former employees to establish the existence of a joint employer relationship between a hospital and its vendors, but the rules are not final yet. Employers are in a challenging situation when it comes to investigating allegations of harassment that occur in a potential joint employer relationship. If your employee reports that a vendor’s employee has engaged in inappropriate behavior at work, you should consider these key questions as you investigate the report:
1. Who Is Acting Like the Employer? Examine how the working relationship has been managed–who is supervising and controlling the alleged harasser’s conditions of employment? 2. How Is the Investigation Documented? Documentation should clearly state that you employ the complaining party, and not the alleged harasser. Watch for sloppy references now that could lead to liability later. 3. Who Is the Decision-maker? The joint employer tests focus on who has the authority to discipline or terminate the employee. In order to mitigate the risk of a joint employer finding, when discipline is appropriate, the decision-maker should be the actual employer i.e. the vendor, not the hospital.