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FLSA2009-20
January 16, 2009
Dear Name*:
This is in response to your
letter regarding the application of the Fair Labor Standards Act (FLSA) * to your client, a private nonprofit institution,
based on its use of an enterprise-covered employee leasing company.
Specifically, you ask whether the leasing company’s “employment relationship”
with any employer affects your client’s overtime obligations to its employees
who are not individually covered under the FLSA, and whether your client could
be subject to joint employer liability. We conclude that any joint employment
relationship between the leasing company and your client does not affect the
institution’s enterprise coverage under the FLSA and does not make the
institution responsible for compliance with the minimum wage and overtime
obligations.
Your client is a nonprofit
institution providing care for neglected and dependent children. You state
that it is not operated in conjunction with a hospital, covered institution, or
school within the meaning of sections 3(r)(2)(A) and 3(s)(1)(B) of the FLSA, 29
U.S.C. 203(r)(2)(A) and (s)(1)(B). Your client has retained an “employee
leasing company.” You state that all of your client’s employees are “employees
of the leasing company for compensation purposes,” but your client maintains
the day-to-day control over all material personnel matters, including
recruiting, interviewing, hiring, training, counseling, promoting, demoting,
and terminating employees. The “leasing company” serves as a “super payroll
agent” that processes employees’ pay and assumes responsibility for workers’
compensation, group health benefits, and recordkeeping. You state that the
leasing company is a covered enterprise under the FLSA.
The FLSA applies to
enterprises with “employees engaged in commerce or in the production of goods
for commerce, or that has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any
person.” 29 U.S.C. § 203(s)(1)(A)(i). Further, the enterprise must have an
annual dollar volume of $500,000 or more in sales made or business done
exclusive of excise taxes at the retail level that are separately stated. See
id. § 203(s)(1)(A)(ii); Wage and Hour Opinion Letter FLSA2002-8
(< Sept. 5, 2002 ). Enterprise coverage does not extend to religious,
educational, or eleemosynary activities of private nonprofit organizations,
unless they engage in ordinary commercial activities or they are one of the
types of institutions named in sections 3(r)(2)(A) and 3(s)(1)(B) of the FLSA.
See 29
C.F.R.
§
779.214 .
It does not appear that your
client’s private, nonprofit institution is a covered enterprise under the
FLSA. The institution provides care for neglected and dependent children and,
as you state, is not a hospital, covered institution, or school within the
meaning of sections 3(r)(2)(A) and 3(s)(1)(B) of the FLSA. For employees not
individually covered by the FLSA, the institution is not subject to the Act’s
overtime pay provision. See Wage and Hour Opinion Letter FLSA2005-8NA
( Sept. 2, 2005 ).
You ask whether the
institution’s relationship with the leasing company affects the institution’s
FLSA obligations to its employees not individually covered under the Act, and
whether the institution could be subject to joint employer liability. Although
the employees receive compensation directly from the employee leasing company,
the institution maintains sufficient control and supervision to establish that
the institution is an employer.
We do not read your request
as assuming that a joint employment relationship exists, and your request does
not provide enough information to determine if such a relationship exists.
Even if joint employment does exist, however, it would not affect your client’s
obligations under the FLSA. If the leasing company exercises sufficient
control and supervision over the employees so as to become an employer, it
would be responsible for compliance with the FLSA, assuming that it is a
covered enterprise. This would not, however, change your client’s status as a
non-covered enterprise. “Whether two companies constitute a single enterprise
for FLSA coverage and whether they are liable as joint employers under § 207
are technically separate issues.” Chao v. A-One Medical Servs., Inc.,
346 F.3d 908, 917 (9th Cir. 2003). Enterprise status is necessary for coverage under FLSA’s
jurisdiction requirements. See id. at 916. To be subject to the
FLSA’s requirements, the entity must either be an enterprise in its own right,
or part of a single enterprise. The criteria for determining whether various
entities constitute a single enterprise are contained in section 3(r)(1): the
entities must perform “related activities” through “unified operation” or
“common control” for a “common business purpose.” 29 U.S.C. § 203(r)(1).
Joint employers do not automatically constitute a single enterprise. See
Thompson v. Robinson, Inc., 2007 WL 2714091, at *4 (M.D. Fla. 2007).
Thus, your client would be subject to enterprise coverage under the Act by
virtue of its relationship with the leasing company only if your client and the
leasing company were determined to be a single enterprise based on the criteria
in section 3(r)(1), which does not appear to be the case.
This opinion is based
exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided
a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of
any other factual or historical background not contained in your letter might
require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issue addressed herein. You have also
represented that this opinion is not sought in connection with an investigation
or litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
*
Unless otherwise noted, any statutes, regulations, opinion letters, or
other interpretive material cited in this letter can be found at www.wagehour.dol.gov.
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