United States: 劳工部拟统观联合雇佣的现状(英文版)

On January 20, 2016, the U.S. Department of Labor's Wage and Hour Division issued Administrator's Interpretation No. 2016-1, which the agency describes as guidance for employers on joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act. In a blog post accompanying the new guidance, Dr. David Weil, administrator of the Wage and Hour Division, notes that joint employment "has been a major focus for the Wage and Hour Division in recent years" and the agency "considers joint employment in hundreds of investigations every year." Still, according to Dr. Weil, the new guidance "reflects existing policy." Thus, while the DOL's apparent focus on its enforcement agenda may be a cause for some concern, the guidance also makes clear – at least in the DOL's view – that the joint employer rules of the FLSA and MSPA remain unchanged.

The new guidance emphasizes the DOL's view that "[t]he scope of employment relationships subject to the protections of the FLSA and MPSA is broad," with the two statutes analyzed in tandem because they share an identical definition of the term "employ." That is, the DOL contends that the concepts of employment and joint employment under the FLSA and MSPA are notably broader than the common law concepts of employment and joint employment, which look to the amount of control that an employer exercises over an employee.

Thus, in the DOL's view, the test for joint employment under the FLSA and MSPA is different than the test under other labor statutes, such as the National Labor Relations Act, 29 U.S.C. 151 et seq., and the Occupational Safety and Health Act, 29 U.S.C. 651 et seq.

The guidance then discusses two primary types of joint employment relationships: "horizontal" and "vertical."

Horizontal Joint Employment

Horizontal joint employment focuses on the relationship between the two potential joint employers. According to the guidance, horizontal joint employment "may exist when two (or more) employers each separately employ an employee and are sufficiently associated with or related to each other with respect to the employee." In this type of joint employment, "there is typically an established or admitted employment relationship between the employee and each of the employers, and often the employee performs separate work or works separate hours for each employer."

Examples of horizontal joint employment, according to the guidance, may include separate restaurants that share economic ties and have the same manager controlling both restaurants or home health care providers that share staff and have common management. The guidance discusses the legal test for determining whether a horizontal joint employment relationship exists, which focuses on the degree of association between the putative joint employer, and states that the following may be relevant when analyzing this issue:

  • who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners);
  • whether the potential joint employers have any overlapping officers, directors, executives, or managers;
  • whether the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs);
  • if the potential joint employers' operations are inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for?);
  • if one potential joint employer supervises the work of the other;
  • whether the potential joint employers share supervisory authority for the employee;
  • whether the potential joint employers treat the employees as a pool of employees available to both of them;
  • if the potential joint employers share clients or customers; and
  • whether there are any agreements between the potential joint employers.

Vertical Joint Employment

Vertical joint employment, by contrast, focuses on the employee's relationship with the potential joint employer and whether that employer jointly employs the employee. According to the guidance, such a relationship may exist where the employee, "with regard to the work performed for the intermediary employer, [is] economically dependent on another employer." By way of example, the guidance lists a construction worker who works for a subcontractor but is jointly employed by a general contractor as well as a farmworker who works for a farm labor contractor but is jointly employed by the grower.

The guidance, in its discussion of the legal test to determine whether a vertical joint employment relationship exists, reflects yet again the DOL's position that joint employment should be defined as broadly as possible. The DOL takes the position that an "economic realities" test must apply, and the analysis "cannot focus only on control" (such as the power to hire and fire, supervision and control of conditions or work schedules, determination of rate and method of pay, and maintenance of employment records). Rather, the "core question" is whether the employee is economically dependent on the potential joint employer who, via an arrangement with the intermediary employer, is benefitting from the work. The guidance notes that the following seven factors are probative of the question:

Directing, Controlling, or Supervising the Work Performed. To the extent that the work performed by the employee is controlled or supervised by the potential joint employer beyond a reasonable degree of contract performance oversight, such control suggests that the employee is economically dependent on the potential joint employer.

Controlling Employment Conditions. To the extent that the potential joint employer has the power to hire or fire the employee, modify employment conditions, or determine the rate or method of pay, such control indicates that the employee is economically dependent on the potential joint employer.

Permanency and Duration of Relationship. An indefinite, permanent, full-time, or long-term relationship by the employee with the potential joint employer suggests economic dependence. This factor should be considered in the context of the particular industry at issue.

Repetitive and Rote Nature of Work. To the extent that the employee's work for the potential joint employer is repetitive and rote, is relatively unskilled, and/or requires little or no training, those facts indicate that the employee is economically dependent on the potential joint employer.

Integral to Business. If the employee's work is an integral part of the potential joint employer's business, that fact indicates that the employee is economically dependent on the potential joint employer.

Work Performed on Premises. The employee's performance of the work on premises owned or controlled by the potential joint employer indicates that the employee is economically dependent on the potential joint employer.

Performing Administrative Functions Commonly Performed by Employers. To the extent that the potential joint employer performs administrative functions for the employee, such as handling payroll, providing workers' compensation insurance, providing necessary facilities and safety equipment, housing, or transportation, or providing tools and materials required for the work, those facts indicate economic dependence by the employee on the potential joint employer.

The economic realities factors applied vary somewhat depending on the court, but any formulation must address the "ultimate inquiry" of economic dependence.

The guidance explicitly rejects court decisions – including a decision of the U.S. Court of Appeals for the Third Circuit – analyzing only on a potential joint employer's control over the worker in question, rather than the full picture of the economic relationship among the parties. Not only that, the guidance indicates that a specific "economic realities" test from the MSPA regulations can and should be applied to claims under the FLSA. The test from the MSPA regulations, although specific to determining joint employment status in the "context of a farm labor contractor acting as an intermediary employer for a grower," can serve as "useful guidance" to determine vertical joint employment in FLSA cases. The guidance explains that the MSPA regulations can be applied beyond the particular circumstances of the MSPA because they "are probative of the core question of whether an employee is economically dependent on the potential joint employer who . . . is benefitting from the work."

Significance for Employers

The timing of the joint employment guidance, issued near the first of the year and only six months after the DOL issued Administrator's Interpretation No. 2015-1, which focused on the classification of "employees" under the FLSA, further demonstrates the DOL's intent to showcase its activism with respect to wage and hour compliance. The guidance and accompanying materials, including the agency's announcement directing readers to a new DOL webpage on joint employment issues, contain numerous references to the need to hold "all responsible employers" accountable.

The agency also signals where its enforcement efforts may be directed in the future. Dr. Weil's blog post lists a number of industries, including construction, agricultural, janitorial, distribution and logistics, hospitality, and staffing, where it is more common for employees to be shared or there are third-party management companies.

The guidance makes clear that the agency is well-aware of practical as well as legal considerations with respect to joint employment: "[W]here joint employment exists, one employer may be larger and more established, with a greater ability to implement policy or systematic changes to ensure compliance." "Thus," it continues, "WHD may consider joint employment to achieve statutory coverage, financial recovery, and future compliance." In other words, the DOL should be expected to factor a number of practical considerations into its investigations, including – and perhaps foremost – the ability to pay large monetary settlements or judgments. As the guidance notes, joint employers are jointly and severally liable under both statutes.

Finally, in a footnote, the agency exhibits its skepticism of contractual provisions that purport to disclaim joint employer liability. Many employers, especially those that use staffing agencies or similar third-party entities, regularly include such terms in their contracts. As the guidance highlights, these clauses may face special scrutiny and are "not relevant to the economic realities of the working relationship." These clauses are often drafted to state that an employer does not direct or control workers provided by a third party. However, in light of the DOL's rejection of the legal tests that look exclusively or primarily to a putative joint employer's control over the worker, companies cannot rely solely on such contract terms to mitigate potential liability. Instead, employers should carefully analyze how these relationships work in practice.

Overall, the guidance is useful insofar as it clearly states the DOL's stance on how to determine joint employment status. However, given the complexity of joint employment doctrine across the spectrum of federal and state employment law, it is unlikely that the guidance will become a primary resource for large and sophisticated employers. Rather, the guidance may best be viewed as further evidence of the DOL's intent to cast its enforcement net as widely as possible. As Dr. Weil stated in his blog post, the agency plans to "continue educating employers about their responsibilities," perhaps indicating that employers should expect additional guidance on other topics to be published in the near future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Brian Jorgensen
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.