revisitingtHefLsAJointemPLoYertugofwAr labor & Employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
willitbedéjàvuall overagainorwillthe DepartmentofLabormove inadifferentdirection becauseofCoviD-19 ?
The pattern is all too familiar . In September , the Biden Administration rescinded the Joint Employer Rule promulgated by the U . S . Department of Labor ( DOL ) during the last year of the Trump Administration ( largely mooted by a federal judge in September 2020 , but promptly appealed ). This promulgation in turn came after the Trump Administration dumped an interpretation of the term “ joint employer ” issued by the DOL ’ s Wage & Hour Administrator during the Obama Administration . Coming full circle , that Administrator — David Weil — appears destined as of this writing to resume his old post . Will it be déjà vu all over again , or will the DOL move in a different direction because of COVID-19 ?
Much is at stake in this tug of war . Worker advocates want to strengthen wage protection for employees and desire assurances that companies that benefit in some way from the labor will not avoid responsibility for paying the workers who provided it . Business advocates are wary of the uncertainty and continuous litigation that comes from an ever-shifting standard ,
stifling innovation and increasing the cost of doing business . Is there a middle ground that respects and accommodates these competing interests ? We need one because business as usual has failed to produce a longstanding workable solution . The pandemic provides a convenient opportunity for reevaluating the joint employer issue .
There already has been a lot of discussion about how the pandemic is changing the way people work . Remote work , job sharing , and other non-traditional employment strategies are pushing the boundaries , which is likely to lead to further fissuring of the workplace as new business models emerge to help employers use technology and innovation to keep up . What should it mean to “ employ ” a worker when the worker may never set foot in the office of an entity which benefits from the labor and has a connection to employment , but which does not tell the worker what to do or how or when to do it ?
This already has been playing out to a lesser degree for decades as temporary staffing , payroll and HR companies , employee leasing companies , and professional employer organizations steadily increased their impact on the non-government employee market . Since these companies assist other employers in remaining compliant and competitive , they perform a valuable service that bolsters the national economy . But should the DOL consider them , and other similar entities , “ employers ” under the FLSA ? Do these companies really suffer or permit people to work in the wage and hour sense ?
Business innovation should be encouraged as it can assist workers and their employers . Employers and employees need a workable standard from the DOL that protects workers and leaves room for new employment-related arrangements as the economy changes . History shows it inevitably will change and clear guidance would go a long way toward resolving the tug of war that continues to frustrate counsel on both sides of the joint employer equation . n
Author : Timothy Tack – Fisher & Phillips , LLP
JoIn tHe LABoR & eMpLoyMent LAw seCtIon At HILLsBAR . CoM .
3 8 N O V - D E C 2 0 2 1 | H C B A L A W Y E R