An worker working for 2 ostensibly separate however “operationally built-in” companies is taken into account collectively employed, and the worker’s hours labored for the companies should be mixed for the aim of figuring out whether or not their whole hours labored exceeded 40 in a single workweek, U.S. Division of Labor Wage and Hour Division Appearing Administrator James Macy wrote in an opinion letter Tuesday.
DOL launched the letter as a part of a batch of 4 opinion letters this week, two of which addressed employers’ time beyond regulation pay obligations beneath the Honest Labor Requirements Act. The company issued the joint-employer letter — titled FLSA 2025-05 — as a response to an inquiry from a restaurant hostess who labored in a resort’s first-floor restaurant and second-floor members membership.
The worker instructed DOL that they labored shifts at each institutions for a similar charge of pay and would often be clocked in at one whereas being assigned work to the opposite. The worker usually labored fewer than 40 hours per week on the restaurant however can be requested to select up shifts on the members membership, which elevated their hours past 40. The worker was instructed by the employer that they’d not obtain time beyond regulation pay as a result of the 2 institutions have been totally different firms, in accordance with DOL.
Macy wrote that the worker can be thought of a joint worker of the 2 institutions as a result of they seemed to be operationally built-in with each other resulting from bodily proximity in addition to their sharing of a standard kitchen and related menu objects.
Whereas the 2 companies could characterize separate authorized entities, “company formalities don’t essentially override the FLSA’s software,” Macy stated, concluding that the worker’s hours throughout the 2 should be mixed for the needs of FLSA compliance and that the worker ought to obtain time beyond regulation pay.
The FLSA’s joint employer laws have fluctuated over the previous few years as successive administrations sought modifications. In the course of the first Trump administration, DOL printed a remaining rule instituting a “four-factor balancing check” by which to guage potential joint employer relationships, however the Biden administration rescinded the rule a yr later. Final month, the company signaled it might once more suggest a joint employer rule.
Firefighters’ ‘emergency pay’ should be counted towards time beyond regulation, DOL says
A second opinion letter printed Tuesday additionally addressed an worker’s inquiry. A firefighter and paramedic employed by a Texas metropolis authorities requested whether or not “emergency pay” obtained for working throughout a catastrophe or emergency declarations may very well be excluded from the worker’s common charge of pay.
Macy stated that such funds couldn’t be excluded from the common charge as a result of it didn’t meet the FLSA’s standards for both excludable discretionary bonuses or its standards for excludable time beyond regulation premiums.
“As such, the emergency pay ought to be included within the common charge of pay used to calculate time beyond regulation premiums for any non-exempt metropolis workers who obtain such pay,” Macy stated.
Broader return to opinion letters
The letters are a part of a shift again to issuing opinion letters beneath President Donald Trump. In June, DOL introduced the creation of an opinion letter program permitting stakeholders to ship inquiries to 5 of the company’s departments.
“Beneath President Trump’s management, we’re taking steps to make authorities extra environment friendly by actively responding to the wants of companies and employees,” Deputy Secretary of Labor Keith Sonderling stated in a press launch Tuesday, including that the letters “present clear and constant steering to the general public, making certain employers have the knowledge they should adjust to the regulation and positioning them for long-term success.”
Employers that want to request an opinion letter ought to point out the particular legal guidelines or laws in addition to the factual situation that they’re attempting to handle, attorneys beforehand instructed HR Dive. Nevertheless, the company advises in opposition to together with delicate private or enterprise info and asks that events not inquire about an current investigation or litigation matter.
