Joint Employers: DOL Offers FLSA Guidance on When Overtime Obligations May Be Triggered

The Department of Labor appears eager to provide additional guidance on FLSA matters this spring, a welcome trend. On February 28, 2008, the DOL released an opinion letter, FLSA 2007-12, 12/31/07, regarding the joint employment of policy officers who are employed by the City Police Department during the day and work their off-duty hours voluntarily for an Authority charged with complete responsibility for the operation of the City's downtown convention center and arena.

Whether the hours worked by the police officer for the Authority must be taken into account by the City for overtime purposes is a fact-dependent analysis. The issue is whether the employers, in this case public employers, are separate and independent under 29 CFR § 553.227(c). In terms of whether public employers are separate, the DOL's prior opinion letters list the following factors that help determine the relationship of the employers:

1. Separate payroll/personnel systems;
2. Separate retirement systems;
3. Separate budgets and funding authorities;
4. Separate legal entities (including the power to sue and be sued);
5. Arms' length dealings between the employers relative to the individuals in question as employees;
6. Treatment under state law; and
7. Lack of control over the appointment of officers of the other entity.

Another relevant fact may be whether the public employers are treated separately for statistical purposes under the Census of Governments. If the public employers are found to be separate and independent, there is no obligation for the primary employer to include the hours worked by the employees for the joint employer in calculating or paying overtime wages.

As always, if there is a question in an employer's assessment of whether overtime is due to an employee, contacting an experienced FLSA lawyer to analyze the employer's obligations is a must to ensure against unwanted and unintended liability.

Click here to read the opinion letter:
http://www.dol.gov/esa/whd/opinion/FLSA/2007/2007_12_31_12_FLSA.pdf