(a) A single individual may stand in the relation of an employee to
two or more employers at the same time under the Fair Labor Standards
Act of 1938, since there is nothing in the act which prevents an
individual employed by one employer from also entering into an
employment relationship with a different employer. A determination of
whether the employment by the employers is to be considered joint
employment or separate and distinct employment for purposes of the act
depends upon all the facts in the particular case. If all the relevant
facts establish that two or more employers are acting entirely
independently of each other and are completely disassociated with
respect to the employment of a particular employee, who during the same
workweek performs work for more than one employer, each employer may
disregard all work performed by the employee for the other employer (or
employers) in determining his own responsibilities under the Act.4
On the other hand, if the facts establish that the employee is employed
jointly by two or more employers, i.e., that employment by one employer
is not completely disassociated from employment by the other
employer(s), all of the employee's work for all of the joint employers
during the workweek is considered as one employment for purposes of the
Act. In this event, all joint employers are responsible, both
individually and jointly, for compliance with all of the applicable
provisions of the act, including the overtime provisions, with respect
to the entire employment for the particular workweek.5 In
discharging the joint obligation each employer may, of course, take
credit toward minimum wage and overtime requirements for all payments
made to the employee by the other joint employer or employers.
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4 Walling v. Friend, et al., 156 F. 2d 429 (C. A. 8).
5 Both the statutory language (section 3(d) defining
``employer'' to include anyone acting directly or indirectly in the
interest or an employer in relation to an employee) and the
Congressional purpose as expressed in section 2 of the Act, require that
employees generally should be paid overtime for working more than the
number of hours specified in section 7(a), irrespective of the number of
employers they have. Of course, an employer should not be held
responsible for an employee's action in seeking, independently,
additional part-time employment. But where two or more employers stand
in the position of ``joint employers'' and permit or require the
employee to work more than the number of hours specified in section
7(a), both the letter and the spirit of the statute require payment of
overtime.
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(b) Where the employee performs work which simultaneously benefits
two or more employers, or works for two or more employers at different
times during the workweek, a joint employment relationship generally
will be considered to exist in situations such as:
(1) Where there is an arrangement between the employers to share the
employee's services, as, for example, to interchange employees; 6
or
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6 Mid-Continent Pipeline Co., et al. v. Hargrave, 129 F.
2d 655 (C.A. 10); Slover v. Wathen, 140 F. 2d 258 (C.A. 4); Mitchell v.
Bowman, 131 F. Supp., 520 (M.D. Ala. 1954); Mitchell v. Thompson
Materials & Construction Co., et al., 27 Labor Cases Para. 68, 888; 12
WH Cases 367 (S.D. Calif. 1954).
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(2) Where one employer is acting directly or indirectly in the
interest of the other employer (or employers) in relation to the
employee; 7 or
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7 Section 3(d) of the Act; Greenberg v. Arsenal Building
Corp., et al., 144 F. 2d 292 (C.A. 2).
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(3) Where the employers are not completely disassociated with
respect to the employment of a particular employee and may be deemed to
share control of the employee, directly or indirectly, by reason of the
fact that one employer controls, is controlled by, or is under common
control with the other employer.8
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8 Dolan v. Day & Zimmerman, Inc., et al., 65 F. Supp. 923 (D.
Mass. 1946); McComb v. Midwest Rust Proof Co., et al., 16 Labor Cases
Para. 64, 927; 8 WH Cases 460 (E.D. Mo. 1948); Durkin v. Waldron., et
al., 130 F. Supp., 501 (W.D. La. 1955). See also Wabash Radio Corp. v.
Walling, 162 F. 2d 391 (C.A. 6).
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[23 FR 5905, Aug. 5, 1958, as amended at 26 FR 7732, Aug. 18, 1961]
