NATSO on June 25 filed comments on the Department of Labor’s (DOL) Notice of Proposed Rulemaking (NPRM) on the joint employer standard under the Fair Labor Standards Act.
In its comments, NATSO supported the department’s focus on the actual exercise of control over an employees’ terms and conditions of employment and made recommendations for ways the agency could strengthen its Final Rule.
The actual exercise of control as a prerequisite to a joint employer finding would, if finalized, enhance certainty and predictability to an area of the law that has in recent years been marred with ambiguity.
Specifically, NATSO supported the Department’s adoption of a proposed four-factor test for determining if two or more entities are joint employers of a group of employees.
The DOL’s NPRM proposed adopting what is known as the Bonnette test, which analyzes four factors for determining if two or more entities are joint employers of a group of employees.
The test analyzes whether the alleged employer:
- hires and fires the employees;
- supervises and controls the employee’s work schedules or conditions of employment;
- determines the employee’s rate and method of payment; and
- maintains employment records.
In its comments, NATSO said this proposed four-factor test points to an employer’s direct and immediate control over an employee. (The Obama Administration’s joint employer standard allowed for unexercised or even potential control to trigger joint employer status.)
However NATSO urged the agency to clarify proposed language which implies that a business entity must satisfy only one of the four factors to trigger joint employer status.
NATSO urged the agency to make clear that all four factors of the test must be met to indicate joint employment and that one of the four factors on its own would not be enough to establish joint employer status.
The comment period on DOL’s NPRM is now closed. DOL now will review the comments it has received and develop and release its final rule in the coming months.
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