Wage and Hour Division (WHD) Administrator David Weil yesterday issued guidance on joint employers that will allow more employees to fall under the protections of the Fair Labor Standards Act (FLSA), advising:

“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.”

Weil admits that his interpretation won’t apply to every employment situation, but he defines two overarching categories of joint employment that would fall under the FLSA — horizontal and vertical:

“Horizontal joint employment exists where the employee has employment relationships with two or more employers and the employers are sufficiently associated or related with respect to the employee such that they jointly employ the employee. ”

“Vertical joint employment exists where the employee has an employment relationship with one employer (typically a staffing agency, subcontractor, labor provider, or other intermediary employer) and the economic realities show that he or she is economically dependent on, and thus employed by, another entity involved in the work.”

Read “Administrator’s Interpretation No. 2016-1.