DOL Proposes New Joint Employer Test

The last thirty days have been hecka-busy at the U.S. Department of Labor.

On March 7, the DOL announced a proposed rule to adjust the salary-level for overtime exemptions.

Then, on March 28, the DOL announced another proposed rule, one that would clarify what amounts an employer can exclude when calculating an employee’s regular rate of pay. Employee’s regular rate of pay dictates how overtime is paid. I blogged about that here.

Finally, on on Monday, the DOL tackled joint-employer status. I’m going to blog about that now.

Here is the DOL’s Notice of Proposed Rulemaking. And here’s me quoting liberally from the supporting press release:

“The Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages. This proposal would ensure employers and joint employers clearly understand their responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.

The Department proposes a clear, four-factor test—based on well-established precedent—that would consider whether the potential joint employer actually exercises the power to:

    • hire or fire the employee;
    • supervise and control the employee’s work schedules or conditions of employment;
    • determine the employee’s rate and method of payment; and
    • maintain the employee’s employment records.

The proposal also includes a set of examples for comment that would further help to clarify joint employer status.

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And here is a link to those examples, which I encourage you to read so this post doesn’t balloon into thousands of words.

The National Labor Relations Board  has gone back and forth on its own joint employer rules. See “NLRB Issues Plan to Overhaul Joint Employer Rules.” The extended period for commenting closed in February.

Oh, you want more joint-employer information to feed your brains? Sure, why not:

If you want to comment on the proposed rule, you can do that by heading over to, and searching for rulemaking docket RIN 1235-AA26 once the proposal is published in the Federal Register. You must comment by 11:59 pm 60 days from the Federal Register publication or you can talk to the hand.

This article originally appeared on The Employer Handbook blog.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.