More businesses in Kentucky may be considered “joint employers” if a proposed change that appears to broaden the test for an employment relationship is finalized. In recent years, courts and administrative agencies have used various multi-part tests and analyses to determine whether two separate entities “jointly” employ one or more workers. The ultimate touchstone, however, in many of these cases is the concept of control. Thus, as a practical matter, if an employment agency provides some of its workers to perform services at another company, the amount of control that company exercises over such workers often determines whether it may also be found to jointly employ them. A proposed change to the Kentucky Administrative Regulations — which was filed on December 14 — would tilt the balance even further in favor of a finding of joint employment. What do you need to know about the proposed change?
The New Language
The new language would amend the Kentucky Administrative Regulations to provide that “[t]he principal test for determining whether an employment relation exists is whether the possible employer controls or has the right to control the work to be done by the possible employee to the extent of prescribing how the work shall be performed.”
Why is this proposed change significant? The language would seemingly allow for an entity using another entity’s employees to be considered a joint employer of those workers simply because the user entity will almost certainly...
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