newspapers and by word-of-mouth. T. (Transcript of hearing) 137. When an employer calls in a request for workers, Respondents offer the opportunity on a first come, first served basis to workers who have walked in to their offices that day. T. 141. Respondents register the workers, checking their picture IDs and Social Security cards, T. 139, and making sure the workers are sober and not under the influence of drugs. T. 142. Respondents sometimes provide transportation to the work sites, T. 137, and assure that the workers wear appropriate clothing and shoes. T. 142. Respondents give each worker a time slip to be filled out by their supervisor at the work site and handed in to Respondents. T 144-47. Respondents charge the client companies between $6.00 and $7.50 per hour for each hour worked by the day workers and usually pay the workers the minimum wage. J (Joint Exhibit) 1. The parties stipulated that some of the workers worked more than forty hours in some work weeks but that they were not paid overtime. Id.

    The Administrator takes the position, which was adopted by the ALJ, that under the regulations, Respondents willfully violated the FLSA because a Wage-Hour investigator informed them in 1990 and again in 1992 that they were obligated to pay overtime for these workers. R. D. & O. at 9 and 38; 29 C.F.R. § 578.3(c)(2). Respondents do not dispute the fact that Wage-Hour notified them that it considered their failure to pay the day workers overtime a violation of the Act. However, Respondents disputed that conclusion; they assert that they are not the employer of the day workers and that, having relied in good faith on the advice of their counsel to that effect, they did not willfully violate the Act.

    The courts have developed multi-part tests under the FLSA for determining whether a worker is an employee or an independent contractor, and whether two or more businesses are joint employers of a worker. In Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3d Cir. 1991) the court set forth the factors for determining whether a worker is an independent contractor : 1) the degree of the alleged employer's right to control the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; 6) whether the service rendered is an integral part of the alleged employer's business. In Aimable v. Long & Scott Farms, 20 F.3d 434, 438 (11th Cir. 1994), cert. denied, mot. granted, 115 S. Ct. 351, the court listed the factors for joint employment : (A) the nature and degree of control of the workers; (B) the degree of supervision, direct or indirect, of the work; (C) the power to determine the pay rates or the methods of payment of the workers; (D) the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; (E) preparation of payroll and the payment of wages. See also 29 C.F.R. § 791.2. Further, "[i]t is a well-established principle that the determination of the employment relationship does not depend on isolated factors but rather upon the circumstances of the whole activity.'" Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (quoting Rutherford Food, 331 U.S. at 730). In addition, technical considerations or simply counting the number of factors on each side does not control; rather the ultimate issue is whether as a matter of "economic reality" the particular worker is an employee of the business or organization in question. Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33 (1961).

    Before discussing the specific facts in this case, we think it is important to take note of the Congressional intent behind the Fair Labor Standards Act's overtime requirement. Overtime was intended as a means to "spread employment to avoid the extra wage and workers were assured additional pay to compensate them for the burden of a workweek beyond the hours fixed in the Act. . . . [T]he Presidential message which initiated the legislation . . . referred to a general maximum working week,' [and to] the evil of overwork' as well as underpay.'" Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 578 (1942).

the day workers, the client firms.

    In Bonnette v. California Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), "chore workers" who provided domestic in-home services to the aged, blind and disabled were found to be the joint employees of the individual recipients for whom they performed services and the state agency administering the program. The court found the following facts significant in concluding that the state agency was a joint employer:

the chore workers were paid by [the state agency][which] controlled the rate and method of payment and . . . maintained employment records. . . . [The state agency] also exercised considerable control over the structure and conditions of employment by making the final determination . . . of the number of hours each chore worker would work and exactly what tasks would be performed. . . . [The state agency] had periodic and significant involvement in supervising the chore worker's job performance.' [Quoting the district court's findings.] . . . . [The state agency's] power over the employment relationship by virtue of their control over the purse strings was substantial."

704 F.2d at 1470.

    In Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988), Superior Care referred temporary health care personnel, primarily nurses, to individual patients, hospitals, nursing homes and other health care institutions. Superior Care maintained a roster of nurses and assigned them as work became available. 840 F.2d at 1057. The court found it significant, in concluding that the nurses were Superior Care's employees, that "the nurses constituted the most integral part of Superior Care's business, which is to provide health care personnel on request [and that Superior Care] unilaterally dictated the nurses' hourly wage, limited working hours to 40 per week . . . and supervised the nurses by monitoring their patient care notes and by visiting job sites." Id. at 1059. The court found that, even though the nurses were skilled workers, "they depended entirely on referrals to find job assignments, and Superior Care . . . controlled the terms and conditions of the employment relationship." Id. See also Amarnare v. Merrill, Lynch, Pierce, Fenner and Smith, Inc., 611 F. Supp. 344, 349 (S.D.N.Y. 1984) (finding worker paid by temporary employment agency performing services for and under direction of another is a "loaned servant" and employee of both entities under Title VII of Civil Rights Act of 1964).

    In this case, Respondents regularly engaged in activities from which we can conclude that they acted in the interest of employers of the day workers: Respondents screened the workers for the client firms, by checking their picture IDs and Social Security cards. T. 139. Respondents established minimum qualifications for employment, determining if the workers were sober and not under the influence of drugs, T. 142, and

checking to make sure the workers wore the type of clothing specified by the client as appropriate for the job, e.g., work shoes, no loose fitting clothing or tank tops. T.142. Respondents often transported the workers to the job sites. T. 143. Respondents gave the workers time slips which were filled out by the client company's supervisors. Id. The workers returned the filled out time slips to Respondents who checked to make sure they were completely filled out and paid them for their hours worked. T. 147. Respondents set the wage received by the day workers, usually the minimum wage. J-1. Respondents arranged for workers to return to the same client when the client so requested, T. 148, and also refused to refer a worker to a client when the client indicated dissatisfaction with the worker. T.149.

id., and exercised the authority on her own initiative to refuse to refer workers to jobs for misconduct, such as drug use or accidentally setting a work area on fire. Id. at 18. We find that Marlene Woods exercised sufficient control over the work situation of the day workers to meet the definition of employer in the Act.

- Harold Woods was, President, Treasurer and a director of Alternative Staffing, Inc., R. D. & O. at 32, President of Work-A-Day of Nashua, Treasurer of Work-A-Day of Fitchburg and of Work-A-Day of Lowell. R. D. & O. at 33; T. 246. His duties included opening bank accounts, making sales, renewing contacts with prior clients, taking orders for workers, transporting and paying the day workers, and general office duties. T. 246-7. We find Harold Woods met the definition of employer under the Act.

-Ann Woods was the President of Baystate Alternative Staffing, the President of Able Temps Referrals, Inc., the President and Treasurer of Work-A-Day of Worcester, Inc., and the "clerk and director" of Alternative Staffing, Inc. R. D. & O. at 31-33. However, she did not know she was President of Alternative Staffing and of Work-A-Day of Worcester and had no idea what a president did. P-9 at 22-23. Ann Woods signed the 1990 Stipulation with the Wage-Hour Division and the Respondents' Response to the Administrator's Request for Admissions, but she had no involvement with the Department of Labor investigation and did not remember signing the stipulation. Id. at 32 She signed the day workers' pay checks, id. at 10, answered the phones, id.at 17-18, handled other paperwork, id, at 17, maintained records on the office computer, id. at 10, and provided a second signature on new bank accounts. Id. at 27. Ann Woods rarely had any dealings with the dispatchers, drivers, or client companies, id. at 17-18. We find that Ann Woods did not have sufficient control of the day workers' work situation to qualify as their employer.

    We find that the Administrator has carried her burden of showing that Respondents willfully violated the overtime provisions of the Act under the standard of willfulness established by the Supreme Court in McLaughlin v. Richland Shoe Co., 486 U.S. 128,131 (1988) (whether the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute), and the implementing regulations. 29 C.F.R. § 578.3(c). Respondents were put on notice by a Wage-Hour investigator in 1990 and 1992 that their practices of not keeping records of the hours worked by the day workers and not paying them overtime violated the Act. Because we have found that Respondents acted in the interest of employers of the day workers and a responsible official of the Wage and Hour Division put them on notice that their practices violated the FLSA, that is sufficient under the regulations to find that Respondents willfully violated the Act. 29 C.F.R. § 578.3(c)(2). In addition, during the 1990 investigation, the Wage-Hour investigator gave Respondents a copy of a Department of Labor publication (WH Publication 1297, P-20), which specifically states that employees of a temporary help company are joint employees of such a company and of the client