1. More Than You Bargained For: Mitigating Joint Employment Risks
Presented by
Christie Totten and Shelley Spandorf
For the Oregon Winegrowers Association

2. Agenda What is joint employment? Why is it a hot topic right now?
Why should my business care?
When might joint employment exist?
What can I do about it?

3. What is Joint Employment?

4. Joint Employment
Joint employment: One person has two (or more) employers for the same work.

5. Horizontal Joint Employment
One employee shared between two related businesses.
Horizontal JE:
Two wineries (separate entities) share common management. Each employs Sara in their own tasting room.
Example:
Jose works at two separate vineyards. The vineyard owners agree to swap workers back and forth as needed.
If close relationship between the two entities, they may be deemed joint employers.
Result:

6. Vertical Joint Employment
Vertical JE:
Employee of Employer A is also economically dependent on or controlled by Employer B.
Example:
Farmworker is employed by Farm Labor Contractor. FLC brings worker to prune vines on grower’s land.
Result:
If sufficient factors exist, grower may be deemed a joint employer.

7. Case by Case Multi-factor tests FLSA – 9 factor test (29 CFR 791)
MSPA – 7 factor economic realities test (29 CFR )

8. Vertical Joint Employment Analysis (Step 1)
Is the intermediary employer (contractor) itself an employee of the grower?
If yes  STOP. All of the contractor’s employees are also the grower’s employees.
Example: Grower and FLC sign independent contractor agreement. But government decides FLC is economically dependent on the grower, and deems FLC an employee of the grower.
Result: All of FLC’s farmworkers are also the grower’s employees.

9. Vertical Joint Employment Analysis (Step 2)
If no  ANALYZE factors to decide if contractor’s employees are jointly employed by the grower.
Direction & control
Hire/fire authority, direct or indirect
Permanency & duration of relationship
Low-skilled and repetitive services
Activities an integral part of the grower’s overall business operations
Work performed on the grower’s premises
Whether the grower assumes employer responsibilities (e.g. payroll; workers’ comp; facilities, housing or transportation; tools, equipment or materials for the job.)

10. Example from the US. Dept. of Labor Admin Interpretation No. 2016-1:
FLC:
Hires & pays worker
Grower:
Dictates timing of harvest, which fields, daily schedule
Trains unskilled labor
Tracks amount picked per hour, pays per bucket
Provides buckets, transports and stores fruit
Withholds money for WC insurance
Has same worker on the farm each harvest season
DOL says: facts indicate joint employment

11. Why the focus now?
More attention by government agencies (BOLI, DOL, EEOC, OSHA, NLRB) and courts
Targeted attention on certain:
Industries (including agriculture)
Arrangements (including FLCs)
DOL admin guidance: Joint_Employment_AI.htm

12. Why should I care if I am a joint employer?
Joint Employer = obligations of an employer
Joint Liability if labor supplier violates the law
Employee chooses who to sue
More employees may trigger new laws applying to your workplace
(OFLA/FMLA, disability accommodations, overtime in tasting rooms, and more)
Government investigations

13. How does this situation arise?
FLC?
Independent Contractor?
Vineyard Management Company?
Staffing Agency?

14. What can I do about it?

15. Steps

16. Ignore, Ignore, Ignore

17. Hands Off
Identify and drop unnecessary practices that increase your risk Train your employees

18. Talk, Calculate and Think
Talk: Is your labor provider aware of joint employment? Does it understand and comply with relevant laws?
Do the Math: What is smallest number of employees you might have? The biggest?
Assess Risk: How exposed are you? How much risk are you willing to tolerate?

19. Contract Review
Understand: Your contract and tax forms do not control the joint employer determination
General Terms and Control
Superfluous language
Defined terms
Training, safety and policies

20. Contract Review Compliance with Laws FLC requirements
List: “including but not limited to”
Contractor agrees it is solely responsible for ensuring compliance with all federal, state, and local laws applicable to Services performed for Company, including, without limitation, paying wages, benefits, taxes, and required insurance; posting signage and notices; complying with hiring laws including immigration and background checks; protecting worker health and safety; granting required meal and rest breaks; accruing, granting, and recording paid leave under the Oregon Sick Time Law; and ensuring the work environment is free of harassment, discrimination, and retaliation based on any protected status.

21. Contract Review Risk allocation Employer Liability Law Insurance
Indemnification, hold harmless, cost of defense, limits on liability
Bond?
Employer Liability Law

22. Audit

23. Audit
Thorough
Objective
Privileged

24. Points to Remember Look at your workplace with objective eye
Consider risks if deemed a joint employer
Modify practices and contracts as needed

25. Shelley Spandorf
Christie S. Totten