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DOL Proposes Revisions to Joint Employer Regulations

April 1, 2019

The U. S. Department of Labor’s (DOL) Wage and Hour Division (WHD) today announced a Notice of Proposed Rulemaking (NPRM) to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. In 2017, the DOL withdrew the previous administrations sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment.

The Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee's wages. This proposal intends to ensure employers and joint employers clearly understand their 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 now proposes a four-factor test - based on court 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 joint employment examples for comment to further assist in clarifying joint employer status. AGC will provide input to the DOL on the impact this update might have on the construction industry and will notify members of any developments.

For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382.

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