On January 20, 2016, the Department of Labor (“DOL”) issued Administrator’s Interpretation No. 2016-1 (“AI”), providing guidance on how the DOL will analyze joint employment under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”). The purpose of the AI is to address the varying organizational and staffing models used by more and more businesses, such as: sharing employees or using third-party management companies, independent contractors, staffing agencies, or labor providers. The AI states that the DOL’s Wage and Hour Division encounters joint employment in all industries, but specifically refers to the following industries as examples: construction, agricultural, janitorial, warehouse and logistics, staffing, and hospitality.
While joint employment will be assessed on a case by case basis, the AI sets forth (for purposes of the FLSA and MSPA), that joint employment should be defined as broadly as possible (more broadly than the common law control standard). Employers who share employees, or use third-party management companies, independent contractors, staffing agencies, or labor providers should be aware of the DOL’s broad interpretation of joint employment, as this will likely be an issue for which the DOL is on the lookout. Further, while the AI is not binding on courts, it may be cited by courts as a guide for purposes of interpreting whether a joint employment relationship exists.