Joint Employment Revisited

A new California statute that imposes liability on general contractors for unpaid wages of their sub-contractors employees prompts us to revisit the principles of joint employment. For previous posts on the topic, click here.

The new statute, AB 1701, provides that, for contracts entered into after January 1, 2018, a "direct" contractor (as defined in Civil Code section 8018) is liable for for wages owed to a wage claimant that is incurred by a subcontractor, acting under the direct contractor, for the wage claimant’s performance of labor included in the subject of the direct contractor's contract with the property owner.

Usually, joint employment issues are determined by application of general principles governing the establishment of an employment relationship. This requires analysis of the various factor used by courts and administrative agencies to determine who is an employer. In any given situation it is possible that more than one person will be an employer of a particular worker. For an explanation of the standard that the Department of Labor uses to determine joint employment under the Fair Labor Standards Act see the Wage and Hour Division's Fact Sheet 35. For an application of joint employment principles in a Title VII case, see Peppers v. Cobb County (11th Cir. 2016) 835 F.3d 1289. For the allocation of responsibility for providing FMLA benefits, see 29 CFR section 825.106.  For an application of joint employment principles to a California wage and hour claim, see Guerrero v. Superior Court (2013) 213 Cal.App.4th 912. For a discussion of the dual employer principle under California worker's compensation law, see In-Home Supportive Servs. v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720.