Employment Law: Control is Not the Only Issue

HR Magazine

Marc A. Mandelman, a Member of the Firm in the Labor and Employment practice, in the firm’s New York office, authored an article in HR Magazine, titled “Employment Law: Control is Not the Only Issue.”

Following is an excerpt:

Although the decision directly affects only businesses in New York, Connecticut and Vermont, it is sure to influence courts in jurisdictions throughout the country. As a result, it is potentially significant for all businesses that subcontract out some aspect of their work.

The court’s decision in Zheng v. Liberty Apparel Co. (No. 02-7826, Dec. 30, 2003), clarifies the standard by which companies may be held liable for the wage and hour violations of subcontractors under the Fair Labor Standards Act (FLSA). Historically, most lower courts have focused on the issue of “control” over the subcontractor’s employees when determining joint employer status. In fact, the 2nd Circuit itself used a control test in prior decisions but took a different course in Zheng.