Workplace Word® – Since When Am I the Boss? Ever Expanding Attacks on Non-Traditional ” Employers”

by Erin Leach

In the past few years it has become increasingly common for plaintiffs to attempt to broaden their potential recovery sources by naming multiple defendants in employment actions under a joint employer theory – often including larger but more attenuated entities. This argument frequently arises in the following situations: (1) parent and subsidiary companies, (2) franchisors and franchisees, (3) staffing companies and their clients and (4) contractors and sub-contractors. Generally under labor and employment laws, joint employers are found to exist where two separate legal entities share the ability to control or determine essential terms and conditions of employment, including hiring, firing, disciplining, supervising, scheduling and directing employees. Where a joint employment relationship is found, both entities must comply with the applicable laws with respect to the employees at issue and are subject to civil liability and damages whether the claim is brought under labor laws, wage and hour laws, leave laws, discrimination / harassment / retaliation laws or tort liability. Under the joint employer theory, plaintiffs seek to hold multiple alleged employers jointly and severally liable for employment law violations arising in the course of their employment.

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