The U.S. Department of Labor recently announced a proposed rule to revise and clarify current responsibilities of employers, joint employers to employees in joint employer arrangements. The current regulations have not been “meaningfully” revised on joint employer regulations since 1958. As a society, I think we have seen a few changes in the work relationship since 1958. An uptick in temp services, contract workers, consultants, seasonal workers, etc. The new proposals would clarify understanding on responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.
The Department proposes a clear, four-factor test—based on well-established precedent—that would consider whether the potential joint employer actually exercises the power to:
- “hire or fire the employee;
- supervise and control the employee’s work schedules or conditions of employment;
- determine the employee’s rate and method of payment; and
- maintain the employee’s employment records.
The proposal also includes a set of examples for comment that would further help to clarify joint employer status.”[i]
Additional Clarity under the Proposed Rule:
“The rule would also clarify that the following factors don’t influence the joint-employer analysis:
- Having a franchiser business model.
- Providing a sample employee handbook to a franchisee.
- Allowing an employer to operate a facility on the company’s grounds.
- Jointly participating with an employer in an apprenticeship program.
- Offering an association health or retirement plan to an employer or participating in a plan with the employer.
- Requiring a business partner to establish minimum wages and workplace-safety, sexual-harassment-prevention and other policies.”[ii]
“The proposed changes are designed to reduce uncertainty over joint employer status and clarify for workers who is responsible for their employment protections, promote greater uniformity among court decisions, reduce litigation and encourage innovation in the economy,” according to the DOL.
“Employers that wish to comment on the proposal may do so by visiting www.regulations.gov.”[iii]
“Joint employer” means each of two or more employers who has some control over the work or working conditions of an employee or employees. Joint employers may be separate and distinct individuals or entities with separate owners, managers and facilities. A determination of whether or not a joint employment relationship exists will not often be decided by the application of any single criterion; rather the entire relationship shall be viewed in its totality.”[iv]
We continue to see proposed changes to labor and employment laws at the local, state and federal levels. Many of these changes will impact our organizations and are significant. No meaningful changes since 1958 on joint-employer laws and regulations is startling, as there has been so many changes in the work relationship. Continue to monitor for updates, proposed changes, to ensure your organization is compliant. If you are confused, seek guidance. These changes happen so quickly, it can be overwhelming to any organization to maintain updated handbooks, training, communications payroll records, labor posters, etc.
New York: NYC Bans Family Planning Discrimination (5/20/19):
“The New York City (NYC) Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. This new protected category encompasses “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.”[v]
New Jersey Family Leave Law Amendment (June/July 2019):
“The NJFLA currently applies to employers with 50 or more employees. The amendment reduces the employer size threshold to just 30 employees. Thus, beginning on June 30, 2019, employers with 30 or more employees (in total, anywhere) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period.”[vi]
[i] https://www.dol.gov/whd/flsa/jointemployment2019/
[ii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Labor-Department-Seeks-to-Revise-Joint-Employer-Rule.aspx
[iii] SHRM.org
[iv] https://www1.nyc.gov/assets/dca/downloads/pdf/about/Grocery-Worker-Retention-Act-Law-Rules.pdf
[v] SHRM Email
[vi] SHRM Email
Published by Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD
Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered MCIPD
Lean Six Sigma Black Belt
ABOUT:
Matthew Burr has over 18-years of experience working in the human resources field, starting his career as an Industrial Relations Intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company; Burr Consulting, LLC, Talentscape, LLC and Co-Owner of Labor Love, a Labor, and Employment Law poster printing company. Prior to founding the consulting firm, the majority of his career was heavy industry manufacturing and healthcare. He specializes in compliance auditing, training labor and employment law, conflict resolution, performance management, labor, and employment relations. Matthew has a generalist background in HR and operations, while providing strategic HR and operational solutions to his clients, focusing on small and medium sized organizations. He works as an Adjunct at Alfred State University, Tompkins Cortland Community College, and Montgomery Community College. He successfully designed an HR Concentration in the business management major that aligned with both SHRM and HRCI certifications, providing opportunities for students to sit for both the SHRM-CP and aPHR certifications upon completion of the degree, concentration, and internship hours as an Assistant Professor of Management at Elmira College (Retired January 2022). Matthew is also the SHRM Certification Exam Instructor, with a current pass rate of 92% on the SHRM-SCP and 83% pass rate on the SHRM-CP and a combined 88% on both exams over a 7-year period of instructing the course (Elmira College, Collin College & The College of St. Rose). Matthew works as a trainer at Tompkins Cortland Community College, Corning Community College, Broome Community College, and HR Instructor for Certification Preparation for the Human Resource Certification Institute (HRCI). He also acts as an On-Call Mediator and Factfinder through the Public Employment Relations Board in New York State, working with public sector employers and labor unions.
PUBLICATIONS:
Matthew has over 70+ publications including, American Bar Association (ABA) Experience Magazine, Cornell HR Review, Business Insider, New York State Bar Association (NYSBA), PayScale, Society of Human Resource Management (SHRM), and Expert 360 (in Australia). In early 2017, he published his first book, “$74,000 in 24 Months: How I killed my student loans (and you can too!),” proceeded by his second book, which was published in January 2021, “Slay the Student Loan Dragon: Tips and Tricks on How to Conquer the Student Loan Game” and his most recent book, “Unbox Your HR Career” in July 2023.
VOLUNTEER WORK:
Matthew is currently the New York State Society of Human Resource Management (NYSSHRM) District-Director.
EDUCATION & TRAINING:
Additional Training & Development:
SHRM Workplace Coaching and Mentoring Recertification Program, 2020
SHRM Foundation Employing Abilities @Work Certificate, 2020
SHRM Foundation Veterans at Work Certificate Program, 2018
Delta County Chamber of Commerce: Delta Force Leadership Program, 2013
FEATURED IN & ON:
Matthew was featured on CNN Money, Fast Company, Fits Small Business, Fox News, Magnify Money, Monster.com, My Twin Tiers, Namely, Student Loan Hero, Smart Sheet and CEO Blog Nation, Human Resource Certification Institute (HRCI), Society of Human Resource Management (SHRM).
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