When most people work two jobs, they work for two entirely unrelated employers. If an employee has one part-time job with Wendy's and another with McDonald's, that employee is not entitled to overtime compensation (their normal pay times 1.5 for hours over 40 in a week) if they work over forty (40) hours for the two employers when their time at both jobs are added together.
However, if the employee is doing the same job but working part of their hours for one entity and part of their work for another related entity the employee may be entitled to overtime pay for hours worked over forty in a week.
If the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), 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 are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.” [29 CFR 791.2(a)] The fact that employees who are employed jointly by two or more employers are entitled to overtime has been established both by the courts like in the caseWalling v. Friend, et al.,156 F. 2d 429 (8th Circ.), as well as by amendment to the Act.
Paragraph (b) of 29 CFR Section 791.2 provides the following three criteria to determine if a joint employment relationship exists:
· The employers share the services of the employee; or
· One employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
· The employers share control of the employee because one employer controls, or is controlled by, the other employer, or all of the employee’s employers are controlled by another company.
These criteria are from Federal Regulations at 29 CFR 791-2.
29 CFR § 791.2(a) provides that a determination of whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case. If all the relevant facts establish that two or more employers are acting entirely independently 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 his own responsibilities under the Act.
On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), 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 are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek. Both the statutory language (section 3(d) defining “employer” to include anyone acting directly or indirectly in the interest or an employer in relation to an employee) and the Congressional purpose as expressed in section 2 of the Act, require that employees generally should be paid overtime for working more than the number of hours specified in section 7(a), irrespective of the number of employers they have. Of course, an employer should not be held responsible for an employee's action in seeking, independently, additional part-time employment. But where two or more employers stand in the position of “joint employers” and permit or require the employee to work more than the number of hours specified in section 7(a), both the letter and the spirit of the statute require payment of overtime. In discharging the joint obligation each employer may, of course, take credit toward minimum wage and overtime requirements for all payments made to the employee by the other joint employer or employers.
However, if the employee is doing the same job but working part of their hours for one entity and part of their work for another related entity the employee may be entitled to overtime pay for hours worked over forty in a week.If the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), 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 are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.” [29 CFR 791.2(a)] The fact that employees who are employed jointly by two or more employers are entitled to overtime has been established both by the courts like in the caseWalling v. Friend, et al.,156 F. 2d 429 (8th Circ.), as well as by amendment to the Act.
Paragraph (b) of 29 CFR Section 791.2 provides the following three criteria to determine if a joint employment relationship exists:
· The employers share the services of the employee; or
· One employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
· The employers share control of the employee because one employer controls, or is controlled by, the other employer, or all of the employee’s employers are controlled by another company.
These criteria are from Federal Regulations at 29 CFR 791-2.
On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), 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 are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek. Both the statutory language (section 3(d) defining “employer” to include anyone acting directly or indirectly in the interest or an employer in relation to an employee) and the Congressional purpose as expressed in section 2 of the Act, require that employees generally should be paid overtime for working more than the number of hours specified in section 7(a), irrespective of the number of employers they have. Of course, an employer should not be held responsible for an employee's action in seeking, independently, additional part-time employment. But where two or more employers stand in the position of “joint employers” and permit or require the employee to work more than the number of hours specified in section 7(a), both the letter and the spirit of the statute require payment of overtime. In discharging the joint obligation each employer may, of course, take credit toward minimum wage and overtime requirements for all payments made to the employee by the other joint employer or employers.
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