Section 210.115 Joint Employers
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.
(Source: Added at 46 Ill. Reg. 2144,
effective January 21, 2022)