- whether a possible employer has the power to direct, control, or supervise the worker(s) or the work performed;
- whether a possible employer has the power to hire or fire, modify the employment conditions or determine the pay rates or the methods of wage payment for the worker(s);
- the degree of permanency and duration of the relationship;
- where the work is performed and whether the tasks performed require special skills;
- whether the work performed is an integral part of the overall business operation;
- whether a possible employer undertakes responsibilities in relation to the worker(s) which are commonly performed by employers;
- whose equipment is used; and
- who performs payroll and similar functions.
DOL emphasizes that “a determination of whether joint employment exists must be based upon all the facts of the particular case” and that “no one factor is controlling.” The ultimate question, DOL explains, is one of economic dependence.
DOL asserts that “many home care providers are jointly employed by two or more entities,” which may include a consumer, a private home care agency, a non-profit organization, or a public entity. The Department particularly points out that “a public entity and a consumer may jointly employ a provider through a Medicaid-funded consumer-directed program.” Other third parties, such as a provider agency or a Managed Care Organization (MCO), may also be joint employers in consumer-directed programs.
The rule does not allow third-party employers to claim either the companionship exemption or the exemption from overtime for live-in domestic services, even when that third-party employer is in a joint employment relationship with a family or individual who may properly claim the exemption. The rule requires that workers working for a single third-party employer, even if they serve multiple consumers, be compensated at the overtime rate for all hours worked over 40 in a workweek, as well as compensated for travel time when moving between multiple work locations.
DOL hosted a call with stakeholders on Thursday to go over the guidance, and noted on the call that the Centers for Medicare and Medicaid Services (CMS) is currently developing guidance to assist state Medicaid programs to structure their systems to support the FLSA obligations to pay for overtime and travel time in situations where workers serve multiple individuals. That guidance is expected "soon", but as of yet there is no firm estimated date for its issuance. DOL representatives also noted that they have heard clearly the request from multiple stakeholders to delay implementation of the rule, but did not indicate that the implementation date would be extended beyond the current date of January 1, 2015.