Contingent Employees: Joint Employer Issues with Temporary and Leased Employees Under Various Arrangements

1. Contingent Employees: Joint Employer Issues with Temporary and Leased Employees Under Various Arrangements Kira FonteneauThe Fonteneau Firm 2229 Morris Avenue Birmingham, AL 35203 (T) 205.533.9202 (F) 866.730.1427 www.kirafonteneau.com kira@kirafonteneau.com

2. Contingent Workers • 2.5 million - 5.7 million contingent workers in the U.S. • 27% under the age of 25, 3/5 of young contingent workers enrolled in school • 37% hold at least a bachelor’s degree • 55% would prefer permanent employment • 18% have employer sponsored health care

3. Contingent Workers • Individuals who do not have and implicit or explicit contract for work and who do not expect their employment to last. • Independent Contractors • Temporary Employees • Leased Employees

4. Joint Employer • “[w]here the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek.” A joint employment relationship generally will be considered to exist in situations such as: • Where two employers agree to share the employee's services; • Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; • Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee. 29 CFR 791.2.

5. Zheng v. Liberty Apparel Co. Inc. Apparel manufacturer who outsourced the finishing of its garments to an outside contractor could be a joint employer of the contractor’s employees.

6. Virgo v. Riviera Beach Associates, Ltd. A management company running a hotel and the hotel’s owners were joint employers for purposes of Title VII jurisdiction.

7. A-One Med v. Chao In-home healthcare providers who worked together closely had performed “related activities” under “common control” and as such their employees could be combined making both companies subject to the Fair Labor Standards Act.

8. NLRB v. Checker Cab A loose association of 286 independent taxi cab owners could be required to negotiate with a union jointly based on their use of shared resources.

9. Avoiding Joint Employer Liability • Maintain an arms length relationship with independent contractors. Employers who become too enmeshed in the details of how contractors accomplish their assigned tasks may become responsible for the contractor’s wrongdoing. • When working with outside staffing agencies be sure that you do not set expectations that could be construed to encourage violations of anti-discrimination or wage and hour laws. • Do not allow employees of another company to become so enmeshed in your daily operations that it appears that they are regular employees. • Make sure contingent employees are aware that they do not have regular employee status and be very clear about which benefits if any, they are entitled to.

10. Avoiding Joint Employer Liability • Make all contingent and regular employees aware of your company’s applicable non-discrimination and harassment policies. • Do not ignore violations of state or federal laws engaged in by contractors or staffing agencies. • Review and/or revise contractual arrangements with staffing vendors to ensure that they clearly indicate which entity will be the worker’s employer and who will be liable for violations of employment laws that occur during the relationship.