Determining whether a particular employer “controls” an employee who has other concurrent employment is often difficult without first examining the particular facts and nuances of each employment relationship. Regulations set forth in the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) offer five factors to be considered:
- The nature and degree of control of the workers;
- The degree of supervision, direct or indirect, of the work;
- The power to determine the pay rates or the methods of payment of the workers;
- The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;
- The preparation of payroll and the payment of wages;
Yet this is not a complete list. Six other “control” factors have been recognized in judicial decisions, including:
- The investment in equipment and facilities;
- The opportunity for profit and loss;
- The permanency and exclusivity of employment;
- The degree of skill required to perform the job;
- The ownership of property or facilities where work occurred;
- The performance of a specialty job within the production line integral to the business.
All 11 factors cited above, including both the regulatory factors of MSAWPA, and the non-regulatory factors found in the case law, have now been combined into a collective test of employee control for determining whether an employer is subject to the Fair Labor Standards Act (FLSA). To trigger the analysis, an aggrieved employee must allege a joint employment relationship. In fact, it is the employee who has the burden of proof to demonstrate a joint employment status, and in a judicial proceeding, the employee must establish the joint employment inference by a preponderance of the evidence.