What constitutes a “joint employer?” If you ask most workers who their employer is, the answer is simple. Typically, it’s the head of the firm, or the boss that signs your paycheck. However, in other situations, particularly in large organizations or construction settings, where an owner may contract with one party, and that party subcontracts out another portion of the work, who your “employer” is can become complicated. Further, in certain situations you may have “joint employment.” Recently, the Fourth Circuit Court of Appeals’ set up a of a new test for joint employment under the Fair Labor Standards Act (FLSA). Pursuant to this test, those companies found to be “joint employers” of a worker are responsible, both individually and jointly, for compliance with the FLSA, including minimum wage and overtime requirements. This means that both “employers” must work together to determine the number of hours worked each week, and whether the employee is owed overtime pay.
Specifically, the Fourth Circuit determined that someone is a joint employer where
(1) two or more persons or entities share or allocate responsibility for the essential terms and conditions of a worker’s employment and (2) based on the two entities combined influence over the “terms and conditions” of the worker’s employment, he or she is considered an employee, rather than an independent contractor. In these instances, both employers are required to ensure that 1) You are paid at least minimum wage and; 2) If you are non-exempt, you receive the overtime compensation you are entitled to. Both employers may be held responsible for a violation of either of these provisions. Although Georgia sits in the Eleventh Circuit Court of Appeals, this definition may serve as guidance to courts around the country.
For more information, or if you believe that you have not been paid all the compensation you are rightly entitled to, please contact the experienced Atlanta wage and hour lawyers at Buckley Bala Wilson Mew LLP for an immediate case evaluation.