When a joint employment relationship exists, both employers can be jointly and severally liable for compliance, including payment of all wages, overtime premiums, damages and other relief owed to employees. Accordingly, determining joint employer status can be critical to assessing liability.
On April 22, 2026, the U.S. Department of Labor (DOL) announced the Notice of Proposed Rulemaking (NPRM) to revise and harmonize its joint employer analysis across the FLSA, FMLA and MSPA. The proposal seeks to address longstanding ambiguity by establishing a uniform national standard, drawing on areas of consensus among federal courts, while resolving key circuit splits. Acting Secretary of Labor Keith Sonderling emphasized that the rule is intended to provide greater clarity for businesses, improve employees’ understanding of their rights and enhance the efficiency of DOL enforcement efforts.
The NPRM’s proposed analytical framework would do the following:
-Horizontal joint employment would exist where “separate employers are sufficiently associated with respect to the employment of the same employee.” The proposed rule identifies three relevant considerations: (1) whether the employers have an arrangement to share the employee’s services; (2) whether one employer acts, directly or indirectly, in the interest of the other with respect to the employee; or (3) whether the employers share control of the...
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