{"id":10528,"date":"2026-05-01T06:54:50","date_gmt":"2026-05-01T06:54:50","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/dol-issues-proposed-rule-on-joint-employer-liability-under-flsa-fmla-and-mspa-bodman\/"},"modified":"2026-05-01T06:54:50","modified_gmt":"2026-05-01T06:54:50","slug":"dol-issues-proposed-rule-on-joint-employer-liability-under-flsa-fmla-and-mspa-bodman","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/dol-issues-proposed-rule-on-joint-employer-liability-under-flsa-fmla-and-mspa-bodman\/","title":{"rendered":"DOL Issues Proposed Rule on Joint Employer Liability Under FLSA, FMLA, and MSPA | Bodman"},"content":{"rendered":"\n
\n

On April 22, 2026, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking to clarify the standard for determining joint employer status under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). If finalized, the proposed rule would have significant implications for employers that rely on staffing agencies, subcontractors, professional employer organizations, or other multi-entity labor arrangements.<\/h2>\n

According to the DOL, the proposed rule establishes a single nationwide standard to promote clarity, consistency, and predictability for employers, workers, and enforcement personnel in an area of law characterized by divergent judicial tests and circuit splits. This proposed rule is subject to change after the DOL reviews comments submitted. The comment period is open until June 22.<\/p>\n

At the heart of the proposed rule is its effort to align joint employer analysis across the FLSA, FMLA, and MSPA by grounding all three frameworks in the FLSA\u2019s statutory definition of \u201cemploy\u201d and \u201cemployee.\u201d The DOL explained that because both the FMLA and MSPA expressly incorporate the FLSA\u2019s employment definitions, applying a unified analytical framework is necessary to ensure consistent enforcement. The proposed rule addresses both \u201cvertical\u201d and \u201chorizontal\u201d joint employment relationships and how those are established.<\/p>\n

The Vertical Joint Employer Test<\/strong><\/h5>\n

Vertical joint employment generally arises where a worker is formally employed by one entity, but another entity benefits from the work and may exert control over employment conditions. This scenario is frequent when staffing agencies are involved. The proposed rule establishes a four-factor test but also explains that a single factor is not dispositive. The four factors are whether the entity:<\/p>\n

    \n
  1. has the power to hire or fire the employee;<\/li>\n
  2. supervises or controls the employee\u2019s work schedule or conditions of employment to a substantial degree;<\/li>\n
  3. determines the employee\u2019s rate and method of payment; and<\/li>\n
  4. maintains the employee\u2019s employment records<\/li>\n<\/ol>\n

    The proposed rule also details other factors that \u201cmay be relevant\u201d to the analysis, including things such as a continuous relationship or repeated relationship between the entities, work location, and economic dependence. However, these factors carry less weight than the four primary factors.<\/p>\n

    The Horizontal Joint Employment Test<\/strong><\/h5>\n

    Horizontal joint employment involves two or more associated employers that separately employ the same worker in the same workweek. The employee\u2019s hours must be aggregated for FLSA overtime purposes. The proposed rule states that employers would be \u201csufficiently associated\u201d if:<\/p>\n