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In Florida, Can I Have Two Different Employers For the Same Job? What is a Joint Employer?

LaborLaw5

It may be a term introduced to you from an initial job interview or maybe it is something that comes up when you’re completing your new hire paperwork: “joint employers.” Perhaps, for others, it is a term you’ve never heard in the workplace, but wondering if it may apply to your work situation.

Generally speaking, joint employment refers to a situation in which more than one employer shares control of—and  in some cases responsibility for—an employee’s work. This includes responsibility for proper payment of wages and liability for wrongful termination.

Of course, the shared responsibility does not end there. Indeed, the concept of joint employment also extends into the realm of discrimination issues, as well.

According to the U.S. Department of Labor (DOL), “joint employment exists when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statute.”

Under a theory of joint employment, can one employer be liable for another’s actions? What does it mean for you as an employee if you are working for two different employers?

Determining Joint Employment

The DOL makes clear that an employee can indeed have two different employers in Florida. There are a number of scenarios in which joint employment can exist. The DOL cites two broad situations in which, under the Fair Labor Standards Act (FLSA), joint employment likely exists:

  • When the employee has two or more employers that are technically separate employers, but the employers are related or associated with one another in some capacity; and
  • When one employer provides labor to another employer, and the employee is dependent financially upon both of those employers.

Courts generally look at eight different factors in deciding whether there is a joint employment situation. Indeed, a relatively recent case from the Eleventh Circuit—from which decisions are binding in Florida—applied this eight-factor test to decide whether a third-party contractor could be considered a joint employer. Those factors include the following:

  • Degree of control over the worker;
  • Degree of supervision (even indirectly) over the work;
  • Ability to determine pay rates, or methods of payment;
  • Right to hire, fire, or otherwise modify employment conditions;
  • Preparing payroll and wage payment;
  • Ownership of site where work occurs;
  • Performance of specialty job that is integral to the business; and
  • Investment in the job being completed.

Typically, situations in which more than one employer has some control over the employee can mean that there is a joint employment situation. What are some of the legal issues surrounding joint employment?

Joint Employers from a Wage and Hour Perspective 

The FLSA requires both (or all) joint employers to “ensure that the employee receives all employment-related rights under the FLSA (including payment of at least the federal minimum wage for all hours worked and overtime pay at not less than one and one half the regular rate of pay for hours worked over 40 in a workweek, uncles an exception or exemption applies).”

In other words, if there is a joint employment situation and one of the employers does not abide by federal minimum wage requirements, the other employer(s) may be liable. For example, consider a case in which one of Donald Trump’s companies settled a lawsuit in which the question of joint employment was at issue. In that case, the other employer did not abide by wage laws, and as a result the employees filed a claim against the Trump company, Trump Miami, as a joint employer. 

Joint Employers and Discrimination Claims 

One joint employer may also be responsible for the actions of the other joint employer(s) in situations beyond just wage and hour pay issues. As the DOL makes clear, joint employers have a duty to abide by the law themselves, and to bear responsibility in situations where the other joint employer does not. As such, if there is a situation, for instance, in which a supervisor for one employer takes discriminatory action against an employer, both employers—through a theory of joint liability—may be on the hook for damages.

Expanding Liability in Joint Employment Situations. 

The DOL largely has been expanding liability in joint employment matters in recent years. Indeed, an Administrator’s Interpretation (AI) from 2016 emphasizes that the FLSA defines the employment relationship between employer and employee quite broadly, thereby extending liability to joint employers in certain circumstances.

Furthermore, it’s important to note that the National Labor Relations Board (NLRB) has also expanded the definition of a joint employer to include a company’s use of specialized services when the company “administers any level of indirect control over contracted employees.”

Contact a Florida Labor Law Attorney

If you have additional questions about what joint employment means for you, a Florida labor law attorney can assist you. Contact Scott Wagner and Associates, P.A. today.

Resources:

dol.gov/whd/flsa/Joint_Employment_AI.htm

ca11.uscourts.gov/opinions/ops/201112532.pdf

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* Cathleen Scott is licensed to practice in Florida only.

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