新联合雇主指引
劳工部发布联合雇主指南
2015年7月，美国政府宣布.S. Department of 劳动 (DOL) issued guidance to assess whether a worker is properly classified as an independent contractor or an employee under laws like the Fair 劳动 Standards Act, 这决定了加班时间, 失业保险和其他义务. 独立承包商不受该法案的保护.
当时, we noted that responding to mounting evidence that many employers nationwide have classified some of their employees as independent contractors as a cost-savings measure, there has been increased federal and state focus on whether workers are properly designated as independent contractors or if they instead should be considered company employees.
2015年9月, we reported on the National 劳动 Relations Board’s (NLRB) contentious decision in Browning Ferris Industries and how it expanded the test for finding joint-employer status.
While the joint employment concept is not new under the FLSA, DOL says the new guidance is necessary because as a result of continual changes in the structure of workplaces, the possibility that a worker is jointly employed by two or more employers has become more common in recent years and the traditional employment relationship of one employer employing one employee is less prevalent.
美国劳工部特别提到了建筑业, 等, as one where its Wage and Hour Division (WHD) encounters this employment scenario.
共同就业的意义
Joint employer status is important because a joint employer is deemed the legal employer of an employee even though that employee may not have been hired by a company or appear on the company’s payroll. 在建筑行业, 这意味着如果找到了共同雇主身份, a developer is deemed the employer of his contractor’s employees or a contractor deemed the employer of his subcontractor’s employees.
人工智能承认“当然, 不是每个分包商, 农场劳务承包人, or other labor provider relationship will result in joint employment,“然而, 正如人工智能指出的那样, 对于那些决定成为联合雇主的人, the burden can be significant because: When two or more employers jointly employ an employee, the employee’s hours worked for all of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculating whether overtime pay is due. 另外, 当存在共同雇佣时, all of the joint employers are jointly and severally liable for compliance with the FLSA and MSPA.
水平和垂直联合就业
The WHD differentiates between “horizontal” joint employment and “vertical” joint employment, 并提供了评估每个类别的指导.
Horizontal Joint Employment focuses on the relationship between two (or more) employers that “are sufficiently associated or related with respect to the employee such that they jointly employ the employee.” As an example, the AI discusses a waitress who works for two restaurants. 虽然餐厅可能是独立的实体, 他们可能是女服务员的联合雇主，如果, 例如:
- The same individual is the majority owner of both restaurants
- The managers at each restaurant share the employee between locations and jointly coordinate the scheduling of the employee’s hours
- The two employers use the same payroll processor to pay the employee
- The two employers share supervisory authority over the employee.
Vertical Joint Employment focuses on the employee’s relationship with the potential joint employer and whether that employer jointly employs the employee. Vertical joint employment exists “where the employee has an employment relationship with one employer … and the economic realities show that he or she is economically dependent on, 因此受雇于, 另一个参与工作的实体.” DOL provides the following example of facts that are indicative of joint employment of a laborer by a general contractor:
ABC石膏板公司雇佣了一名工人, which is an independent subcontractor on a construction project. ABC Drywall was engaged by the General Contractor to provide drywall labor for the project. ABC干墙公司雇佣并支付工人工资. The General Contractor provides all of the training for the project. The General Contractor also provides the necessary equipment and materials, 提供工伤保险, and is responsible for the health and safety of the laborer (and all of the workers on the project). The General Contractor reserves the right to remove the laborer from the project, 控制劳动者的日程安排, 并提供现场作业, and both ABC Drywall and the General Contractor supervise the laborer. The laborer has been continuously working on the General Contractor’s construction projects, 无论是通过ABC Drywall还是其他中介.
The AI has identified seven factors as probative of the core question of whether the employee is economically dependent on the potential joint employer who, 通过与中介雇主的安排, 从工作中获益吗.
- Directing, controlling, or supervising the work performed
- 控制雇佣条件
- 关系的持久性和持续时间
- 重复和机械的工作性质
- 不可或缺的业务
- 在处所进行的工作
- Performing administrative functions commonly performed by employers
While an AI merely provides guidance and does not carry the force of law, 尽管如此, 它, 可以说, signal DOL’s intent to increase aggressive enforcement of joint employment status in its investigations. 相应的, 建议建筑商查看“要点”,上面引用的Browning Ferris文章中提到的:
- 和你的律师一起审查你的合同
- 回顾你的现场实践
- 了解人员配置协议
正如一位评论员所指出的那样, 只有时间才能告诉我们法院会推迟到什么程度, 如果有的话, 这个人工智能.
