Wage and Hour Defense Blog

The doctrine “joint employer” liability has received significant attention in recent months, including on this blog. Under the Fair Labor Standards Act, an employee may be deemed to have multiple employers—each of whom would be liable jointly for all aspects of FLSA compliance, including with regard to the payment of wages—in connection with his or her performance of the same work. During the prior administration, the U.S. DOL issued a rule intended to standardize the parameters of joint employer liability.  Months later, however, a federal court invalidated a portion of the new rule, holding that it impermissibly narrowed the scope of the joint employer doctrine. And, in July 2021, the DOL announced its outright repeal of the rule—i.e., whether a business might face joint employer liability will again be governed by the multi-factor “economic reality” test subject to varying judicial interpretations.

On January 24, 2019, Governor Cuomo’s office issued a press release announcing a new proposal to be included in the 2020 Executive Budget aimed at cracking down on wage theft and bolstering the State’s efforts to hold accountable employers who attempt to improperly withhold wages. This proposal would increase the criminal penalties for employers who either knowingly or intentionally commit wage theft violations to bring them in line with other forms of theft.

Presently, only employers who commit repeated wage theft can be prosecuted with a felony. The proposed legislation ...