On April 23, 2026, the U.S. Department of Labor (“DOL”) proposed a new rule (the “Proposed Rule”) for assessing joint employer status under the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), and the Migrant and Season Agricultural Worker Protection Act (“MSAWPA”). The Proposed Rule seeks to apply a uniform federal test across these statutes for determining joint employer status, replacing different approaches developed by various circuit courts. Crucially, while the Proposed Rule is not as business-friendly as past proposed rules for assessing joint employment, it does identify certain business practices which, on their own, do not create joint employer liability. This rule would create a single federal standard for determining joint employer status across multiple employment laws.
So, how did we get to the Proposed Rule? Joint employment as a concept is notorious for being subject to multiple standards across different federal statutes, and the analysis for any given statute can differ by circuit court. For example, in analyzing joint employment under the FLSA, the Fourth Circuit assesses whether the two employers are “completely disassociated” from one another. In contrast, the Second Circuit assesses whether a certain employer has “functional control over workers.” The DOL has not proposed a uniform joint employer rule since it finalized a rule in 2020 (the “2020 Rule”), advising President Trump’...
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