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Joint employment? Feds issue new guidance

January 20, 2016

New guidance on joint employment was issued today by the US Department of Labor’s Wage and Hour Division.

The department examines employment relationships in hundreds of investigations a year, wrote David Weil, wage and hour administrator, in a blog post. The guidance is intended to help educate employers on the issue.

“Economic forces and technological advancements have been changing the nature of work for a long time,” Weil wrote in his blog post. “As a result, more and more businesses are changing their organizational and staffing models by, for instance, sharing employees or using third-party management companies, independent contractors, staffing agencies or other labor providers.”

This has made the need to address joint employment more urgent, he wrote.

“Last summer, for example, a federal court in Seattle sided with the department in ruling that DirecTV was a joint employer of the installers hired by its contractor, resulting in DirecTV paying $395,000 in back wages and damages for minimum wage and overtime violations,” Weil wrote. “And in October, we announced that J&J Snack Foods Corp. would pay $2.1 million in back wages and damages to temporary production line workers hired by two staffing firms that J&J contracted with to provide labor.”

The guidance has drawn a negative reaction from the franchise industry, but some in the staffing industry do not believe it will have a large impact – instead causing staffing buyers to be careful about which staffing firms they use, The Washington Post reports.

“I have read the guidance and it does not state that staffing firm clients will be joint employers,” said Fiona Coombe, director of legal and regulatory research at Staffing Industry Analysts. “But it is clear from the examples provided, that the more the client dictates the work and the terms of employment of the worker provided by a staffing firm, the more likely it will be that the worker, particularly an unskilled worker doing work that is integral to the client’s business and on the client’s premises, will be jointly employed by the client and the staffing firm.”