DOL’ s proposed Joint Employer Rule could reshape liability for food and agriculture employers
CHANCE CONAWAY
In late April, the U. S. Department of Labor( DOL) published a proposed rule that would revise how joint employment status is determined under several major federal employment laws. The proposal establishes a single, nationwide framework for assessing joint employment under the Fair Labor Standards Act( FLSA), the Family and Medical Leave Act( FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act( MSPA). If adopted, the rule could significantly affect food and agriculture employers that rely on staffing agencies, farm labor contractors and other third-party labor arrangements.
What is joint employment?
Joint employment arises when more than one person or entity exercises sufficient control over an employee’ s terms and conditions of employment to be considered that employee’ s employer under federal law. When joint employment exists, each employer may be held jointly and severally liable for payment of wages, FMLA compliance issues, housing, transportation, and disclosure obligations under the MSPA, and other relief that might be owed to employees.
In the food and agriculture context, business needs such as time-sensitive harvest windows, fluctuating production demands, and geographically dispersed worksites sometimes lead employers to rely on complex employment arrangements involving contractors, staffing agencies, transportation providers, and more. While these labor models offer flexibility and efficiency, they also raise difficult questions about legal responsibility for employee conduct, wage payment, and compliance issues.
A shifting joint employer landscape
Prior to 2020, the DOL relied primarily on case law applying a multi-factor“ economic reality” test to determine whether joint employment existed. In 2020, towards the end of the first Trump administration, the DOL issued a rule narrowing the circumstances under which another entity could be considered a joint employer. However, a federal court largely vacated the rule, and the Biden administration later rescinded it.
Since 2021, no binding, nationwide standard surrounding joint employment has been adopted. The DOL believes the 2026 proposal will bring uniformity to enforcement actions“ by adopting a transparent nationwide analysis, which could have benefits for all interested parties.”
Proposal framework
The 2026 proposal addresses two common scenarios: vertical and horizontal joint employment.
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