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

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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_at_kirafonteneau.com

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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 bachelors degree
• 55 would prefer permanent employment
• 18 have employer sponsored health care

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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

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Joint Employer

• where 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.

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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 contractors employees.

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Virgo v. Riviera Beach Associates, Ltd.

• A management company running a hotel and the
  hotels owners were joint employers for purposes
  of Title VII jurisdiction.

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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.

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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 contractors 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.

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Avoiding Joint Employer Liability

• Make all contingent and regular employees aware
  of your companys 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 workers
  employer and who will be liable for violations of
  employment laws that occur during the
  relationship.