Transcript Contingent Employees: Joint Employer Issues with Temporary

Contingent Employees:
Joint Employer Issues with
Temporary and Leased Employees
Under Various Arrangements
Kira Fonteneau
The Fonteneau Firm
2229 Morris Avenue
Birmingham, AL 35203
(T) 205.533.9202 (F) 866.730.1427
www.kirafonteneau.com
[email protected]
Contingent Workers
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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
Contingent Workers
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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
Joint Employer
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“[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:
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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.
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.
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.
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.
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.
Avoiding Joint Employer Liability
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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.
Avoiding Joint Employer Liability
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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.