TO SUFFER OR PERMIT: How The Broad Scope Of The Fair Labor Standards Act Is Increasing The Risk Of Doing Business -

2016 is shaping up to be a troubling one for employers subject to the provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 201, et seq. In addition to the Department of Labor’s (“DOL”) revisions to the FLSA’s white collar exemptions, which will go into effect on December 1, 2016 [see article on page 8], the DOL also recently issued Administrator’s Interpretation No. 2016-1 (“AI”) addressing the concept of “joint employment” under both the FLSA and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), 29 U.S.C. § 1801, et seq. This new guidance, which uses an “economic realities” standard to analyze the potential joint employment relationship, represents a stark departure from the common law control standard frequently utilized by courts. Because the economic realities standard is much broader than that of control, the AI has significant and detrimental implications for businesses that contract with third parties, such as staffing agencies, for workers or administrative functions, or for those that share employees with associated entities.