NELP Denounces DOL’s Proposed Joint Employment Rule

If an assembly line worker regularly logs overtime hours but has never gotten paid for them, should the company that owns the manufacturing plant be liable? What if she was hired not by the manufacturer, but by a staffing agency that the manufacturer uses to fill factory jobs? Historically, both her staffing agency and the manufacturing company are likely responsible under the “Joint Employer Rule,” a legal concept ensures that companies who use subcontracted labor can be held accountable for violations of workplace laws.

But now the U.S. Department of Labor wants to change the rules to make it easier for companies to evade responsibility. The DOL has proposed a change to the joint employer rule that would create a narrower test for determining whether a joint employment relationship exists. If the rule is adopted as the DOL has proposed, workers in already precarious sectors of the workforce are likely to experience deteriorating working conditions and have a more difficult time enforcing their rights. The proposed rule would make it harder for large employers who use subcontractors to be held liable and it will likely cause employers to increase their use of outsourcing.

The National Employment Law Project opposes DOL’s proposed change. In partnership with Governing for Impact, NELP submitted a comment opposing the Department of Labor’s (“DOL”) proposed rule regarding the joint employment standard under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”).

As explained in our comment, the FLSA, FMLA, and MSPA use broad language so that employers who engage subcontracted labor cannot easily evade accountability when workers’ rights are violated. The Supreme Court and circuit courts throughout the country have rightfully affirmed this broad language when assessing joint employment liability. DOL’s proposed rule runs contrary to both the text of the statutes and court precedent.

Outsourcing is already on the rise across many industries—including janitorial, construction, and warehousing—and we’ve seen that workers employed in those industries are facing more wage and hour and health and safety violations as the use of subcontracting and outsourcing has grown. Workers deserve a strong joint employment standard to enforce their legal rights to the full extent of the law, regardless of who is signing their paychecks. The DOL must withdraw its proposed rule.