Many New Jersey individuals work for more than one employer, even if they have only one job. If you have two employers, one of which treats you well and the other of which discriminates or retaliates against you illegally, you may still have legal remedies. Also, if your employers are considered “joint employers,” you must be paid time and one-half for all hours over forty which you work each week for either employer.
Various statutes, including the New Jersey Law Against Discrimination (“LAD”), the Fair Labor Standards Act of 1938 (“FLSA”), and the Family and Medical Leave Act of 1993 (“FMLA”), provide for liability for joint employers. The standard for finding a joint employer relationship varies from statute to statute, but basically, you need to show that each employer employs you.
Under the FLSA, a joint employer relationship is found where: (a) employers arrange to share an employee, (b) one employer acts in the interest of the other employer in relation to the employee, OR one employer controls the other employer. In making this determination, courts look at the totality of the circumstances.
Under the LAD, to find an employer relationship, the court must apply a twelve-factor test (the “Pukowsky test”). The Pukowsky test includes these factors: (1) the employer’s right to control the means and manner of the worker’s performance; (2) the kind of occupation – whether supervised or unsupervised; (3) the level of skill required for the position; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the “employer;” (10) whether the worker accrues retirement benefits; (11) whether the “employer” pays social security taxes; and (12) the intention of the parties. While that may seem overwhelming, courts have consistently held that the first factor is the most important and is given the most weight. Thus, the main question is to what degree each employer is able to control the means and manner of the employee’s performance.
The FMLA allows for joint employer relationships using the same analysis as the FLSA. However, the FMLA further defines joint employers as primary and secondary employers. Primary and secondary employers have different responsibilities under the FMLA, but both primary and secondary employers must count all “joint employees” in determining whether the employer is covered by the FMLA and whether the employee is eligible under the FMLA. Basically, the primary employer is responsible for giving employees all required notices regarding their rights under the FMLA, maintaining the employee’s insurance coverage during leave, and allowing the employee to return to work following their leave. The secondary employer is responsible for not interfering with the employee’s rights under the FMLA, even if the secondary employer is not covered under the FMLA. The secondary employer may also be responsible for restoring the employee to work, and must keep basic information regarding employees and payroll.
Once you are able to show a joint employer relationship, you can move forward to address the illegal discrimination or retaliation.
By Jennifer Vorih, Esq. and Ty Hyderally, Esq.
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