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Top Wage Lawyer Top Reply: Who Is My Employer … The Staffing Agency Or The Job That I Was Placed At?

On Behalf of | Apr 16, 2014 | Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees |

Overtime Wage Attorney Best Answers: What is joint employment? Who owes me wages and overtime if I work for multiple employers? What employer do I sue if I work for multiple employers? How do if find the best wage lawyer?

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As evidenced in this article from the USA today, the modern work environment is muddled by uncertainty and more workers are turning to temporary employment through staffing agencies. Since 2009, the number of people working at temporary jobs has increased nearly 50 percent. In addition, about 12 percent of those who are working are temps, contract workers, consultants, freelancers, etc. But, who is actually employing these workers? Is it the staffing agency? Is it the contractor working for another company? Who is the employer where there’s a parent company and subsidiary relationship? What employer does an employee sue if one or both companies have violated wage and hour laws and which is responsible for ensuring an employer is properly paid?

To figure out who is actually an employer under the Fair Labor Standards Act (“FLSA”), you have to determine who controls the employee. Now, this doesn’t necessarily mean the employer that’s constantly supervising the employee. Control turns on four factors: (1) could the employer hire and fire employees; (2) did the employer supervise and control schedules and employment conditions; (3) did the employer control how much and how an employee was paid; and (4) did the employer keep employment records. As this definition is pretty far-reaching, it’s not too difficult to be an employer under the FLSA. So, who is a joint-employer?

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If an employee’s work benefits both employers at the same time or the employee “works at two or more employers at different times during the week” there’s a joint employment relationship when: (1) there’s some kind of arrangement between the employers to share the employee’s services; or, (2) one employer is acting directly or indirectly in the other employer’s interest in relation to the employee; or, (3) the employers share control of the employee because one employer controls, is controlled by, or is under common control with the other employer (i.e., parent-subsidiary relationship). 29 C.F.R. §791.2. If there is a joint employment relationship then both employers are jointly and severally liable for actions that violate the FLSA.

So, how does this work in the real world?

In September 2013 the Department of Labor (“DOL”) announced that the Castillo Real Hotel in St. Augustine Florida paid 13 employees $17,890 in back wages after a DOL investigation determined it was a joint employer. The Hotel used a staffing company for housekeeping, laundering, and grounds keeping. Staffed employees worked more than 40 hours per week. However, they weren’t paid for overtime and their wages often fell below the minimum wage — violating the FLSA’s minimum wage and overtime provisions. The DOL looked at the relationship between the staffing company and the hotel and discovered that hotel management supervised staffed workers while the workers performed services essential to hotel hospitality. In other words, hotel management controlled the workers and was a joint employer.

Stemming from another DOL investigation, a New Jersey freezer and cold storage (Lucca) company paid $498,604 in back wages and liquidated damages to over 1,700 temporary employees. During the investigation the DOL determined that Lucca used the temp agency to hire as many as 600 people per day and Lucca’s managers supervised the workers at their facility. So, the staffing agency and Lucca were joint employers. As far as the wage and hour violations; the DOL discovered that Lucca required temp workers to arrive 15 minutes early but didn’t pay them (resulting in minimum wage & overtime violations), and occasionally paid temp workers at a piece rate to unload trailers but did not pay them for the piecework when they calculated overtime.

Temporary agencies are valuable businesses offering work to people who otherwise might not be working at all. But, as the DOL has stated “employers may not use such services to escape their responsibility to pay workers their minimum wage and overtime.” If you are working for a temporary agency, staffing firm, or in any other temporary capacity know your rights and ensure that you are being paid what you have earned.

If you believe that your employer is not paying you all of your wages, paying you less than minimum wage, unlawfully deducting money from your paycheck, not paying you time and a half for overtime, or is otherwise cheating you out of wages requires contact the minimum wage violation lawyers and overtime claim attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. You may have a claim under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your wage and hour pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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