Wage and Hour Division proposes one joint employer test for federal wage, leave and farmworker laws
As of our last check on November 3, 2026, this is a proposal, not a requirement. Comments closed June 22, 2026.
We check the Federal Register daily for later actions. We check federal court opinions for rulings on published rules weekly, on Mondays. A ruling can take time to reach us, so not finding one here does not mean there is none.
In short
- What changed
- The Wage and Hour Division (WHD) proposes to restore a joint employer rule under the Fair Labor Standards Act (FLSA), built on four factors such as hiring, scheduling, pay and records. It would apply the same test under the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
- Who's affected
- Employers that share workers with another business, such as staffing agencies and their clients, contractors and subcontractors, franchisors and franchisees, and farms using farm labor contractors. It also matters where one employee works for two related businesses in the same week.
- What to do
- This proposed rule creates no new duties for employers. Consider reviewing how it would treat your staffing, contracting or franchise arrangements, and comment by June 22, 2026, if it affects you.
What changed
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From the sourceV.A.1. Background and Need for Rulemaking
the Department is proposing to restore a regulation for determining joint employer status under the FLSA at 29 CFR part 791, where it was located prior to 2021.
Also: SUMMARY
Since 2021, the Department has not provided any regulatory guidance addressing joint employer status under the Fair Labor Standards Act (FLSA or Act)
The WHD proposes to restore a joint employer rule under the FLSA in part 791 of title 29 of the Code of Federal Regulations (CFR), where it was before 2021. The agency says it has given no regulatory guidance on the topic since 2021.
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From the source29 CFR 791.115(a) (proposed)
Those four factors are whether the person: (1) Hires or fires the employee; (2) Supervises and controls the employee's work schedule or conditions of employment to a substantial degree; (3) Determines the employee's rate and method of payment; and (4) Maintains the employee's employment records.
Where workers employed by one business also benefit another business (vertical joint employment), the proposal would weigh four factors: whether the other business hires or fires the employee, supervises and controls schedules or conditions to a substantial degree, sets the rate and method of pay, and keeps employment records.
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From the source29 CFR 791.115(c) (proposed)
The potential joint employer's ability, power, or reserved right to act in relation to the employee is relevant for determining joint employer status, but the potential joint employer's actual exercise of control is more relevant than such ability, power, or right.
Also: 29 CFR 791.115(b) (proposed)
Satisfaction of the maintenance of employment records factor alone will not lead to a finding of joint employment.
A reserved contractual right to control workers would count, but control actually exercised would count more. Keeping employment records alone would not make a business a joint employer.
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From the source29 CFR 791.115(e) (proposed)
Indicia of whether the employee is economically dependent on the potential joint employer for work may also be relevant.
Also: 29 CFR 791.115(e) (proposed)
However, additional factors are generally less relevant than the four factors identified in paragraph (a) above
Also: 29 CFR 791.115(f) (proposed)
the following factors are primarily probative of a worker's status as an employee or independent contractor and have no relevance in determining joint employer status
Other factors, including whether the employee is economically dependent on the other business, could also be considered but would generally weigh less than the four factors. Three factors used to tell employees from independent contractors (special skill, opportunity for profit or loss, and investment) would not count at all.
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From the source29 CFR 791.110(b) (proposed)
the employee's total hours worked across the workweek for each of the employers must be aggregated for purposes of FLSA compliance, and each employer is jointly and severally liable for the employee's wages due under the FLSA
Where one employee works separate hours for two or more sufficiently associated employers in the same workweek (horizontal joint employment), hours would be added together for FLSA purposes, and each employer would be jointly and severally liable for wages due, including overtime.
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From the source29 CFR 791.125(a) (proposed)
Operating as a franchisor or entering into a brand and supply agreement, or using a similar business model, does not make joint employer status more or less likely under the Act.
Also: 29 CFR 791.125(b) (proposed)
contractual agreements with the employer requiring the employer to comply with general legal obligations or to meet certain standards to protect the health or safety of its employees or the public do not make joint employer status more or less likely
Also: 29 CFR 791.125(d) (proposed)
offering an association health plan or association retirement plan to the employer or participating in such a plan with the employer; jointly participating in an apprenticeship program with the employer
The proposal says certain business models and practices would not make joint employer status more or less likely: franchising and brand-and-supply agreements, contract terms requiring legal compliance or health and safety standards, quality control standards, sample handbooks, association health or retirement plans, and joint apprenticeship programs.
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From the sourceIII.F.5. Omission of the 2020 Rule's Guidance Regarding a Business That Allows Another Employer To Operate on Its Premises
The Department does not propose to include a provision advising that ``allowing [another] employer to operate on its premises (including `store within a store' arrangements)'' does not make joint employer status more or less likely under the FLSA.
Also: 29 CFR 791.115(e) (proposed)
if the employee works at a location or facility that is owned or controlled by the potential joint employer that benefits from the employee's work, that may indicate joint employment.
Unlike the 2020 rule, the proposal would not say that letting another employer operate on your premises (such as a store within a store) is neutral. Working at a site the other business owns or controls may point toward joint employment.
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From the sourceV.A.1. Background and Need for Rulemaking
the Department is proposing to revise the regulations addressing joint employer status under the FMLA and MSPA so that the FLSA analysis in part 791 applies when determining joint employer status under those statutes.
Also: III.G. Proposed Revisions to FMLA and MSPA Regulations
This paragraph references a worker's economic dependence on a particular entity as the ``ultimate question'' to be determined in the joint employment analysis, which is not consistent with the regulation proposed here.
The FMLA and MSPA joint employer regulations would be revised so the same part 791 test applies under those laws. The MSPA provision that treats economic dependence as the ultimate question would be removed.
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From the sourceIII.H. Proposed Revisions to 29 CFR Part 780
the Department is proposing to revise the two references in part 780 so that they cross-reference part 791.
Two FLSA agricultural provisions on farmers, harvest contractors and crew leaders would be revised to point to the part 791 test.
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From the sourceIII.G. Proposed Revisions to FMLA and MSPA Regulations
At this time, the Department does not propose any changes to 29 CFR 825.106(c), however, it invites comments on this provision.
The proposal would not change the FMLA rule on which joint employer is the primary employer, but the agency invites comments on it.
Who is affected
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From the sourceVI.E.4. Exemption From Coverage of the Rule for Small Entities
those definitions are uniformly applicable to all employers, regardless of their size.
The test would apply to employers of every size. The agency rejected a small-business exemption.
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From the sourceV.C.1. Reduced Compliance Costs
particularly businesses in potential vertical joint employment relationships such as farms, farm labor contractors, franchisors, franchisees, general contractors, subcontractors, staffing agencies, and staffing agency clients.
The agency expects businesses in shared-worker relationships to be most affected, naming farms, farm labor contractors, franchisors, franchisees, general contractors, subcontractors, staffing agencies and staffing agency clients.
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From the sourceIII.G. Proposed Revisions to FMLA and MSPA Regulations
would risk confusing agricultural employers, agricultural associations, and farm labor contractors which might be subject to both the FLSA and MSPA
Under MSPA, the changes reach agricultural employers, agricultural associations and farm labor contractors.
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From the source29 CFR 791.105(a) (proposed)
An employer or joint employer may be an individual, partnership, association, corporation, business trust, legal representative, public agency, or any organized group of persons
Also: V.B.1.i. Number of Potentially Affected Entities
the Department estimates 90,888 state and local governments (2022 Census of Governments) might incur familiarization costs.
Public agencies can be joint employers, and the agency counts state and local governments among those that might spend time learning the rule.
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Our analysis29 CFR 791.110(b) (proposed)
an employee works separate hours for two (or more) employers in the same workweek, and the employers are sufficiently associated with each other with respect to the employment of the employee such that they are joint employers.
Related businesses that share an employee across separate shifts in the same week (for example, two restaurants with common ownership) would be affected by the hours-aggregation rule.
What it means in practice
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From the sourceV.A.2. Summary of the Analysis
Because the proposed rule would not impose any new requirements on regulated entities, the Department does not expect that this rulemaking would result in any other meaningful costs.
Also: VI.E.1. Differing Compliance and Reporting Requirements for Small Entities
The proposed rule would not impose new reporting, recordkeeping, or filing requirements on any entity, large or small.
The agency says the proposal would impose no new requirements and no new reporting, recordkeeping or filing duties.
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From the sourceV.B.1.iii. Time To Review
The Department judges 1 hour per entity, on average, to be an appropriate review time for the proposed rule.
Also: VI.D. Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule
the reviewer's effective hourly rate is $64.97.
Also: V.A.2. Summary of the Analysis
initial undiscounted regulatory familiarization costs ranging between $425.17 million (a lower bound estimate) and $544.53 million (an upper bound estimate).
The agency estimates a one-time cost to learn the rule of about one hour per entity, at a reviewer rate of $64.97 an hour, totaling $425.17 million to $544.53 million across the economy.
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From the sourceV.D. Potential Transfers
if the proposed rule were adopted, there would be no change in the Department's aggregation of workers' hours to determine overtime hours worked.
The agency says the horizontal test reflects its current approach, so adding hours across related employers to figure overtime would not change.
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From the sourceV.D. Potential Transfers
the Department might be slightly less likely to find that farmworkers engaged in repetitive tasks are jointly employed for MSPA purposes
The agency says farmworkers doing repetitive tasks might be slightly less likely to be found jointly employed under MSPA than under the current MSPA regulation.
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From the sourceFootnote 253
This reliance defense is not available for alleged FMLA or MSPA violations.
Also: II. Need for Rulemaking
That the proposed regulation would not bind or control the courts--only Department investigators--is unremarkable.
Employers could rely on the final FLSA interpretations for a good faith defense under the Portal-to-Portal Act. The agency says that defense is not available for FMLA or MSPA claims, and that the rule would bind agency investigators, not courts.
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Our analysis29 CFR 791.115(c) (proposed)
a potential joint employer's contractual authority to supervise, discipline, or fire employees is less relevant if in practice the potential joint employer never exercises such authority.
Because reserved control would count under the proposal, contract terms giving a client the right to supervise, discipline or fire another company's workers could weigh toward joint employment even if rarely used, though less than control actually exercised.
What to do
Required
This is a proposed rule. It creates no requirements for employers unless and until the agency issues a final rule.
Worth considering
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Our suggestion29 CFR 791.115(a) (proposed)
Those four factors are whether the person: (1) Hires or fires the employee; (2) Supervises and controls the employee's work schedule or conditions of employment to a substantial degree; (3) Determines the employee's rate and method of payment; and (4) Maintains the employee's employment records.
Consider reviewing staffing, subcontracting and franchise agreements against the four proposed factors, including any reserved rights to hire, fire, schedule or supervise the other company's workers.
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Our suggestion29 CFR 791.110(b) (proposed)
the employee's total hours worked across the workweek for each of the employers must be aggregated for purposes of FLSA compliance
Consider identifying employees who work for two related businesses in the same workweek and checking that their hours are combined when figuring overtime.
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Our suggestionADDRESSES
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA48, by either of the following methods:
Also: DATES
Comments must be received on or before June 22, 2026.
Consider submitting comments through regulations.gov by June 22, 2026, citing the Regulation Identifier Number (RIN) 1235-AA48, if the proposal would affect your business arrangements.
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Our suggestionIII.G. Proposed Revisions to FMLA and MSPA Regulations
At this time, the Department does not propose any changes to 29 CFR 825.106(c), however, it invites comments on this provision.
If you share workers with a staffing agency or other business, consider whether the current FMLA primary employer test fits your arrangements, since the agency invites comments on it.
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Our suggestionIII.G. Proposed Revisions to FMLA and MSPA Regulations
would risk confusing agricultural employers, agricultural associations, and farm labor contractors which might be subject to both the FLSA and MSPA
Agricultural employers that use farm labor contractors may want to compare their arrangements under the current MSPA factors and the proposed test.
Open questions
The source leaves these open. We'll update this record if a later document answers them.
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Will a final rule change how the primary employer is chosen when workers are jointly employed under the FMLA?
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Will a final rule say whether the number of similar contracts a business has with other providers counts in the joint employer test?
Related changes
History
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Joint Employer Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act Source (opens in a new tab)