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AGC Supports DOL Revisions to Joint Employer Status under FLSA

June 26, 2019

On June 25, AGC submitted comments to the U. S. Department of Labor’s (DOL) Wage and Hour Division (WHD) in response to its Notice of Proposed Rulemaking (NPRM) revising and clarifying 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.

AGC’s welcomes the WHD’s proposal to adopt a consistent, common-sense standard for determining joint employer status under the FLSA (Part 791) and supports the acknowledgment that the facts of the relationship between the employee and the employer should govern the joint employer determination, not the structure of the relationship between purported joint employers or business-to-business partners. The NPRM’s emphasis on the actual exercise of control as a prerequisite to a joint employer finding encourages cooperation between businesses without exposing them to potential liability under an uncertain standard. AGC also provided specific examples common to the construction industry where the application of a joint employer standard is uniquely impactful and relevant.

AGC will continue to provide input to the DOL on the impact further changes might have on the construction industry and will notify members of any developments.

This rulemaking should not be confused with ongoing rulemaking by the National Labor Relations Board to establish a regulation defining who is a joint employer under the National Labor Relations Act.  Different standards for determining joint-employer status may apply under different laws.

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

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