Great Scott! In another Department of Labor (DOL) reversal of its own rulemaking during the Trump Administration, the Final Rule, Joint Employer Status Under the Fair Labor Standards Act, which had gone into effect (and I wrote about here) March 16, 2020, has been rescinded. Effective September 28, 2021, employers need to forget everything the DOL previously said in 2020 about joint employment, and go back in time (see what I did there?) to prior guidance when deciding when an employee may have a joint employer.

This is important if two companies share employees. However, employers should have a good faith defense that they relied on then-DOL regulations in determining joint employment status. However, if that is the case, employers should show that once the rescission takes effect (September 28, 2021), they will go back to (or start if new situation), treating the employee as a joint employee for purposes of minimum wage and overtime under the Fair Labor Standards Act. For example, if you own two businesses and employees work at both locations (even if their job is different at each), generally you need to add their hours and make sure that they receive overtime for all hours worked at both locations.