Current through Register Vol. 48, No. 38, September 20, 2024
a) Two or
more employers may be associated with each other in relation to an individual
employee in such a way that they jointly employ that individual under the
Illinois Minimum Wage Law (the "Act"). If the facts establish that the worker
is employed jointly by two or more employers, all of the employee's work for
all of the joint employers during the workweek is considered as one employment
for purposes of the Act. In this event, all joint employers shall be jointly
and severally liable for any violation of the Act.
b) The following factors provide guidance on
whether a joint employment relationship exists in a particular case:
1) The employee's work is to the benefit of
the alleged joint employer;
2) The
work performed by the employee is an integral part of the alleged joint
employer's business or businesses;
3) The alleged joint employer has direct or
indirect control or influence over the employee's terms or conditions of
employment, including the employee's schedule and the quality of the employee's
work;
4) The alleged joint employer
owns or leases the premises where the work is performed or provides tools or
materials used by employees to perform the work;
5) The alleged joint employer has direct or
indirect control over the other joint employer's or employers' operations
through contractual obligations, shared joint management, direct or indirect
ownership interest, or economic dependence.
c) Whether a joint employment relationship
exists depends on all the facts of the particular case. The inquiry should
consist of looking at the actual relationship between the employee and the
employers, including the employers' ability to exercise control over the
employee either directly or indirectly. No one factor is dispositive in the
determination of joint employment. For example, a joint employment relationship
may still exist when only two of the five factors in subsection (b) indicate
the existence of a joint employment relationship.
d) If all the relevant facts based on the
five factors establish that two or more employers are acting in a manner that
is substantially independent of each other, and are completely disassociated
with respect to the employment of a particular employee who, during the same
workweek, performs work for more than one employer, each employer may disregard
all work performed by the employee for the other employer or employers in
determining its own responsibilities under the Act.
e) Examples
1) Example 1
A) Trucking Company enters into a written
agreement with Supplier to make deliveries to the Supplier's clients. Trucking
Company is not a party to the Supplier's agreements with its clients; it only
provides trucks and drivers. Supplier requests the number of trucks to fulfill
its orders on a weekly basis and the number varies depending upon the orders.
Trucking Company hires, disciplines, and dismisses drivers. Trucking Company
assigns drivers to Supplier and its other clients on a rotating basis. Drivers
establish the routes used to make the deliveries and are responsible for making
deliveries in a timely fashion. Trucking Company has other clients.
B) Application
In this example, a joint employer relationship is not formed.
Trucking Company hires, assigns, disciplines, and dismisses drivers. Supplier
and Trucking Company are independent business entities that do not have any
common ownership or shared management. The drivers provide work that is a
benefit to the Supplier, but it is not an integral part of its business.
Supplier has no direct or indirect control over the terms and conditions of the
driver's work, in that it does not dictate the driver's routes or daily
schedules.
2)
Example 2
A) Company A owns a warehouse.
Logistics are an integral part of Company A's business. Company A contracts
with Company B, a logistics supplier, to provide logistics labor to the
warehouse. To perform this contract, Company B relies on several staffing
agencies including Staffing Agency. Workers are employed by Staffing Agency and
perform work at the warehouse. Staffing Agency hires and pays the workers.
Company A provides on-the-job training, necessary equipment and materials,
provides assignments on site, and reserves the right to remove the workers from
the work site. Both Company A and Company B supervise the workers' daily tasks
and exert control over workers' schedules. The workers have been continuously
working at Company A's warehouse, whether through Company B, Staffing Agency or
another intermediary, for over a year.
B) Application
In this example, a joint employer relationship is formed
between all the parties. While Staffing Agency hires and pays the workers,
Company A exerts substantial control over the workers, provides training,
equipment, and materials, can remove the workers from the work site, and exerts
control over worker schedules and provides assignments. Company A and B
supervise the workers. The workers have been continuously employed at Company
A's warehouse regardless of the intermediaries. The work performed by the
workers is for the benefit of Company A.
3) Example 3
A) An employee works as a laborer for
landscaping Company A and also performs the same type of work for landscaping
Company B. The two landscaping companies' managers coordinate the employee's
schedule, assign the employee to various job sites, and generally determine
which workers will be on the crews on a given week. Company A and Company B
issue separate payroll checks to the employee from separate accounts. The two
companies are independently incorporated, however, both companies share the
same majority owner. At times, the two companies share tools and equipment used
by the workers.
B) Application
In this example, a joint employer relationship is formed. The
facts that Company A is incorporated separately from Company B and that each
company pays the workers from separate accounts do not insulate them from the
joint employer relationship. Here, Company A and Company B share common
ownership. The companies share workers, share equipment, coordinate employee
schedules, assignments, and determine what crew workers will be on.
Functionally, they operate as joint employers.
4) Example 4
The General Contractor for a large building construction
project has engaged various subcontractors to complete certain aspects of the
job.
A) Example 4A
i) General Contractor enters into a verbal
agreement with Subcontractor A to provide general workers for the project. The
scope of the work is not defined and changes on a daily basis depending on the
General Contractor's needs at the time. The workers report to the job site
every day for the duration of the project, and will work on this project until
substantial completion. General Contractor provides the tools and materials the
workers use and directs the daily tasks and schedules for the workers. Both
General Contractor and Subcontractor A supervise the employees' quality of
work. General Contractor reserves the right to remove any of Subcontractor A's
workers from the project but does not have authority to terminate workers.
General Contractor has the right to enforce all reasonable workplace rules,
regulations, and address safety issues on the job site.
ii) Application
In this example, a joint employer relationship is formed. The
workers perform work solely on the General Contractor's job site and for the
General Contractor's benefit. While both the General Contractor and
Subcontractor A control the supervision and quality of work, General Contractor
maintains all other authority over the project. General Contractor has assumed
direct control of the assigning workers to the job site. General Contractor
makes the daily work schedule, directs the workers as to the work they are to
complete, and the workers are assigned to this project for the duration of the
project, making them an integral part of the job. The General Contractor can
take disciplinary action by removing workers from the
worksite.
B)
Example 4B
i) General Contractor has a written
agreement with Subcontractor B to perform electrical work on the project. The
agreement outlines the scope of work and requires that Subcontractor B maintain
certain delineated safety standards. Per the agreement, General Contractor also
has the right to address safety issues on the job site. The work requires
specialized training, which Subcontractor B has ensured its employees are fully
qualified to perform. Electricians employed by Subcontractor B report daily to
the project for a discrete period. The electricians may be scheduled by
Subcontractor B to be on other project sites during the same day as being on
Contractor's project. Subcontractor B coordinates the order and timing of their
work with the General Contractor and, although it is not always on the job
site, ensures the quality of the work. Subcontractor B provides the
electricians with the tools and materials they bring to the job site. The
electricians are provided safety requirements by Subcontractor B as outlined in
the contract, Subcontractor B monitors for infractions and when infractions
occur, Subcontractor B raises those issues with the electricians.
ii) Application
In this example, a joint employer relationship is not formed.
While the electrical work performed benefits the General Contractor, it also
benefits Subcontractor B's electrical business. Subcontractor B and the General
Contractor are separate business entities. Subcontractor B hires, directs,
assigns, and supervises the work of the electricians. General Contractor has no
responsibility for the assignment or supervision of the work. General
Contractor and Subcontractor B coordinate general scheduling to accommodate the
flow of work being done, but the electricians are directed, assigned and
scheduled to the project by Subcontractor B. Subcontractor B supplies the
equipment, tools, and materials for the job, and is responsible for the quality
of the electricians' work. Additionally, Subcontractor B is not economically
dependent on the General Contractor, as the electricians are sent to other job
sites indicating this project is only one of many for Subcontractor
B.
5)
Example 5
A) Hospital contracts with Security
Company to provide armed and unarmed security guards 24 hours per day, 7 days
per week. Security Company hires, trains, and supplies uniforms and equipment
for the guards. While this is not the Security Company's only client, it is the
largest and accounts for a majority of its annual revenues. Hospital employs a
Chief of Security who is responsible for communicating the Hospital's needs to
the Security Company. The Hospital Chief of Security holds weekly meetings with
the Security Company to approve the guard assignments, staffing levels,
individual guard job performance and evaluations, discipline of guards who
violate the Hospital's policies, and suggest termination when in the Hospital's
best interest. Security Company assigns an area supervisor who checks on the
guards once per shift, but the Hospital Chief of Security oversees the guards'
work when he is present. He has also given them direction and assigned specific
tasks to the guards that are beyond the Security Company contract.
B) Application
In this example, a joint employer relationship is formed.
Security Company and Hospital share direct control over the guards. The
Hospital's Chief of Security has significant control and oversight in
assignment, supervision, and performance issues, including discipline and
termination. Additionally, there is an element of economic dependence as
Hospital is Security Company's biggest client, which suggests additional
control by the Hospital of the Security Company.
6) Example 6
A) Customer contacted Home Care Agency about
receiving home care services. Home Care Agency met with Customer and determined
what services were needed to meet Customer's needs. Home Care Agency, along
with Customer, determined the tasks to be performed for Customer and the hours
per week required to perform those tasks. Home Care Agency set qualifications,
recruited, and hired Home Care Worker. Customer and Customer's wife supervise
Home Care Worker on a day-to-day basis, can modify the tasks that Home Care
Worker performs, and can modify Home Care Worker's work schedule. Customer or
family members of Customer can report issues to Home Care Agency and Home Care
Agency intervenes if a problem arises, such as arranging for another home care
worker should Home Care Worker become unavailable. Home Care Agency pays the
home care worker directly, keeps records of hours worked, and determines the
hourly rate of pay for the Home Care Worker. Customer is invoiced by Home Care
Agency for the services rendered.
B) Application
In this example, a joint employer relationship is formed
between Home Care Agency, Customer, and Customer's wife. Here, Home Care
Worker's wages are paid by Home Care Agency and Home Care Agency controls the
rate of pay and the method of payment. Customer is invoiced by Home Care
Agency. Home Care Agency, Customer, and Customer's wife exercise considerable
control over the structure and conditions of Home Care Worker's employment by
determining the hours of work and what tasks are to be performed. Customer's
wife can raise issues with Home Care Worker's performance with Home Care
Agency. Home Care Agency intervenes in issues between Home Care Worker and
Customer and/or Customer's wife.
