New DOL Guidance on Joint Employment Navigating Heightened Scrutiny and Minimizing FLSA Liability

Duration: 90 Minutes
You may not think you're a joint employer, but according to the DOL's latest guidance on the subject, you may very well hold that designation - and there are some very important FLSA and FMLA implications you need to be aware of. This webinar will review the far-reaching impact of the Department of Labor's (DOL) recent guidelines greatly expanding joint-employer status. The expert "Cathleen Hampton" will discuss the agency's analysis of horizontal and vertical joint employment and the factors that point to joint-employer liability for wage and hour violations, as well as offer practical and strategic approaches for structuring agreements with subcontractors, independent contractors and contingent workers to minimize the risk of employer or joint-employer liability for FLSA violations.
New DOL Guidance
Instructor: Cathleen Hampton
Product ID: 501655
Objectives of the Presentation
The Speaker will review these and other key issues:
  • How the DOL's recent guidance may affect the current legal standard governing joint-employer liability for FLSA violations
  • Evaluating existing structure, operations, agreements and practices
  • Most common factors relevant for determining joint employment in consumer-directed programs
  • Best practices for minimizing risk of being deemed a joint employer
  • Due diligence questions when structuring agreements between businesses and subcontractors, staffing agencies, contingent workers, and independent contractors to avoid employer or joint-employer status
  • Best practices for structuring and implementing revisions in existing staffing, subcontractor and independent contractor agreements to avoid a joint employment determination?
  • How the DOL's expansive analysis of joint employment may affect wage and hour liability
Why Should you Attend
If you hire contract workers, there are new rules from the U.S. Department of Labor (DOL) you should be aware of with the DOL's recently released and long-awaited guidance on joint employment situations. The guidance comes in the form of a new Administrator's Interpretation along with an updated fact sheet. This webinar will focus on the much longer AI document which includes detailed legal analysis and citations. We will analyze horizontal and vertical joint employment, structuring agreements with contractors and staffing firms so that the attendee is in a strong position with which to limit FLSA Exposure.

The key issue focuses on contract employees who are shared by more than one employer, and who is liable for the workers' pay and hours under the Fair Labor Standards Act (FLSA). Joint employment is determined by applying the "economic realities" test, which examines several factors to determine whether a worker is economically dependent on his or her purported employer to the extent that an employment relationship is created. The test is subjective and highly fact-specific. Among factors considered are:

  • Whether a possible employer has the power to direct, control, or supervise the worker(s) or the work performed
  • Whether a possible employer has the power to hire or fire, modify the employment conditions or determine the pay rates or the methods of wage payment for the worker(s);
  • The degree of permanency and duration of the relationship
  • Where the work is performed and whether the tasks performed require special skills
  • Whether the work performed is an integral part of the overall business operation
  • Whether a possible employer undertakes responsibilities in relation to the worker(s) which are commonly performed by employers
  • Whose equipment is used; and
  • Who performs payroll and similar functions
The DOL's expansive view of joint employment signals the agency's intention to closely scrutinize employment arrangements to identify scenarios in which two or more employers may be jointly liable for wage and hour violations under the FLSA. Employment counsel must prepare companies to evaluate their existing practices and contracts, and consider how to best minimize the risk of being deemed a joint employer of another company's workers.

Listen as our experienced Speaker "Cathleen Hampton" explains how to structure and guide implementation of agreements with subcontractors, staffing agencies and independent contractors to minimize the risk of employer or joint-employer liability in the wake of the DOL's expansive guidelines for establishing joint-employer status. The panel will discuss the agency's analysis of horizontal and vertical joint employment and the factors that point to joint-employer liability for wage and hour violations.

Areas Covered
  • Understanding the condition of economic dependence
  • Factors used to determine an 'economic realities' analysis test
  • Legal framework for defining employment relationship under FLSA and DOL AI 2016-1
    • Horizontal joint employment
    • Vertical joint employment
  • Evaluating existing structure, operations, agreements and practices
  • Best practices for minimizing risk of being deemed a joint employer
Who will Benefit
This new guidance is especially important to the construction, agricultural, janitorial, warehouse and logistics, staffing, and hospitality industries due to the DOL's expressed concern about the growing variety of business models and labor arrangements available to employers.

Topic Background
Given the DOL's guidance last July applying the economic realities standard to independent contractor relationships, it is perhaps not surprising that the agency has sought to similarly narrow the circumstances in which companies can avoid liability in the joint employer context. The DOL's latest guidance is crucial for businesses because when an employee has more than one employer, "the employee's hours worked for all of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculating whether overtime pay is due." Moreover, "when joint employment exists, all of the joint employers are jointly and severally liable for compliance" with wage and hour laws. Thus, because the DOL will often look to joint employment to achieve statutory coverage under the FLSA, the FLSA's joint employment test is broader than the test under other statutes such as OSHA or the NLRA, such that "courts have found economic dependence under a multitude of circumstances where the alleged employer exercised little or no control or supervision over the putative employees."
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Instructor Profile:
Cathleen Hampton is a well-known and respected Human resources professional with more than 25 years' experience providing subject matter expertise and consulting services in the areas of risk and compliance. She is well versed in employment law under the FEHA and Title VII to include designing and conducting management training specifically related to discrimination, retaliation, and sexual harassment prevention. She has been responsible for responding to sexual harassment and other discrimination complaints. Ms. Hampton has conducted numerous investigations of harassment complaints and is considered a trusted advisor advising employers or employees regarding discrimination, retaliation, and sexual harassment prevention as well as providing expert guidance on development of policy and practice for companies.
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