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Understanding Joint Employment Under Federal and West Virginia Law

If you work in health­care, hos­pi­tal­i­ty, or any indus­try that relies on staffing agen­cies, fran­chise mod­els, or shared employ­ment struc­tures, you’ve like­ly encoun­tered the con­cept of joint employ­ment. But what does it actu­al­ly mean? And more impor­tant­ly, how could it affect you or your clients?

Joint employ­ment occurs when mul­ti­ple entities—like a com­pa­ny and a staffing agency, or a fran­chisor and a franchisee—share con­trol over an employee’s work. That shared con­trol can lead to shared lia­bil­i­ty, espe­cial­ly in wage-and-hour dis­putes, dis­crim­i­na­tion claims, and union mat­ters. With recent changes to fed­er­al rules and ongo­ing court deci­sions, under­stand­ing joint employ­ment has nev­er been more important.


What Is Joint Employment?

Sim­ply put, joint employ­ment hap­pens when two or more enti­ties have sig­nif­i­cant con­trol over the terms and con­di­tions of a worker’s job. That could include con­trol over sched­ules, pay rates, hir­ing, fir­ing, or dai­ly super­vi­sion. For legal pur­pos­es, both enti­ties may be con­sid­ered “employ­ers,” mean­ing they’re both respon­si­ble for com­ply­ing with employ­ment laws.

Com­mon exam­ples of joint employ­ment include:

  • A hos­pi­tal and a staffing agency that places nurs­es at the facility.
  • A con­trac­tor and a sub­con­trac­tor at the same job site.
  • A fran­chisor and a local fran­chise own­er oper­at­ing under a shared brand.

Joint Employment Under Federal Law

The FLSA Standard

The Fair Labor Stan­dards Act (FLSA) sets min­i­mum wage, over­time, and record­keep­ing require­ments for employ­ers. In Jan­u­ary 2024, the U.S. Depart­ment of Labor (DOL) issued a new rule expand­ing the cir­cum­stances under which an enti­ty can be con­sid­ered a joint employer.

This rule applies a “total­i­ty of the cir­cum­stances” approach, exam­in­ing fac­tors like:

  • Who sets the work schedule?
  • Who decides the pay rate and pay­ment method?
  • Who main­tains employ­ment records?
  • Who con­trols hir­ing, fir­ing, or discipline?

If the facts show that mul­ti­ple enti­ties share or code­ter­mine these aspects of employ­ment, then both are respon­si­ble for meet­ing the FLSA’s requirements. 

The NLRB’s Broader Test

The Nation­al Labor Rela­tions Board (NLRB) also uses a joint employ­ment stan­dard, but it focus­es on the right to con­trol essen­tial work­ing con­di­tions, even if that con­trol isn’t direct­ly exer­cised. In 2024, the NLRB rein­stat­ed a broad stan­dard that makes it eas­i­er to estab­lish joint employ­er sta­tus in union-relat­ed mat­ters. This is par­tic­u­lar­ly rel­e­vant for com­pa­nies that share poli­cies and pro­ce­dures with fran­chisees, as it can expose the larg­er cor­po­ra­tion to union­iza­tion efforts and unfair labor prac­tice claims.

But a heads up: The new Trump admin­is­tra­tion may well revert back to a more restric­tive test for joint employ­ment sta­tus. There are sig­nif­i­cant changes coming.


Joint Employment Under West Virginia Law

West Vir­ginia doesn’t have its own joint employ­ment statute, but its courts often fol­low fed­er­al stan­dards in wage-and-hour and dis­crim­i­na­tion cas­es. For exam­ple, under the West Vir­ginia Human Rights Act (W. Va. Code § 5–11‑1 et seq.), courts have looked at which enti­ties have con­trol over employ­ment terms to decide lia­bil­i­ty. In Bowyer v. Hi-Lad, Inc., 609 S.E.2d 895 (W. Va. 2004), the state’s high­est court con­sid­ered whether mul­ti­ple employ­ers shared con­trol, influ­enc­ing its deci­sion on dis­crim­i­na­tion claims.

For prac­ti­cal pur­pos­es, if you’re deal­ing with joint employ­ment issues in West Vir­ginia, fed­er­al guide­lines and case law will heav­i­ly inform your legal approach.


Why It Matters

Joint employ­ment isn’t just a technicality—it can have real con­se­quences, including:

  • Lia­bil­i­ty for wage vio­la­tions: If one employ­er fails to pay over­time, the oth­er could be held respon­si­ble as well.
  • Increased com­pli­ance oblig­a­tions: Record­keep­ing, train­ing, and ensur­ing that all applic­a­ble labor laws are fol­lowed now apply to both entities.
  • Union and labor rela­tions chal­lenges: Under the NLRB’s broad rule, larg­er cor­po­ra­tions might face union­iza­tion efforts if their local affil­i­ates are con­sid­ered joint employers.

Tips for Businesses

If you’re work­ing with fran­chisees, staffing agen­cies, or sub­con­trac­tors, con­sid­er these strategies:

  1. Review your con­tracts care­ful­ly. Ensure you’re not retain­ing unnec­es­sary con­trol over anoth­er entity’s employees.
  2. Clar­i­fy HR respon­si­bil­i­ties. Don’t let super­vi­sors give direct orders to work­ers employed by anoth­er com­pa­ny unless absolute­ly necessary.
  3. Main­tain prop­er doc­u­men­ta­tion. Make sure you can show how deci­sions on pay, sched­ul­ing, and dis­ci­pline are made—and by whom.
  4. Stay informed. Keep an eye on fed­er­al and state legal devel­op­ments, as joint employ­ment stan­dards can shift.

Final Thoughts

Joint employ­ment is a com­pli­cat­ed but crit­i­cal area of employ­ment law. Whether you’re a health­care provider work­ing with con­tract nurs­es or a fran­chisor man­ag­ing rela­tion­ships with fran­chisees, under­stand­ing how the law applies can help you avoid cost­ly legal prob­lems. Both employ­ers and work­ers ben­e­fit when every­one knows who’s respon­si­ble for what.

By stay­ing informed and proac­tive, busi­ness­es can ensure com­pli­ance, pro­tect their bot­tom line, and fos­ter a more trans­par­ent workplace.

Drew M. Capuder
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