Are You Considered a Joint Employer?

Are you considered a Joint Employer under the Fair Labor Standards Act (FLSA)? If you are, you may be joint and severally liable for another employer’s employees’ wages and overtime. You are probably saying to yourself;  how can that be?  The answer lies in the broad definition of “Employer” under the FLSA. The FLSA defines an Employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee”.

Because the definition of “Employer” under the FLSA is rather broad and may include more than the employer of the employee, in 1958 the US Dept of Labor (“US DOL”) published regulation 29 CFR part 791, defining three scenarios when another person or entity may be considered a “Joint Employer” under the FLSA for wage and overtime claims. Unfortunately, the US DOL’s 1958 clarification, still left many questions for businesses and attorneys unanswered. It was not until January 12, 2020, over  sixty  years later, that the U.S. DOL adopted additional clarifications and rules which are designed to provide more transparency and notice to businesses as to whom is considered a “Joint Employer” under the FLSA.

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