- Applies to
- Two or more businesses that share control over the same workers
- Common event pairing
- Staffing agency and host venue, caterer or festival operator
- Federal laws
- FLSA (wages and overtime), NLRA (union rights), FMLA
- Liability
- Joint and several: each employer can be held responsible for the full amount owed
- Status in 2026
- NLRB 2020 standard in force; DOL FLSA rule proposed in April 2026
Key characteristics
Shared control Both businesses have a say in hiring, schedules, pay, supervision or discipline for the same people.
Shared liability A worker can recover unpaid wages or overtime from either employer, not only the one that issues the paycheck.
Decided by facts, not labels A contract that says the agency is the only employer does not settle the question; agencies and courts look at who controls the work in practice.
Different test under each law Wage law, labor-relations law and workplace-safety law each use their own standard, so a business can be a joint employer under one and not another.
Joint employer vs related terms
What does joint employer mean?
Joint employment exists when two or more employers share legal responsibility for the same employee. According to the U.S. Department of Labor, each joint employer is jointly and severally responsible for the wages and protections the worker is owed, so the worker can collect the full amount from either one.Holding two jobs does not by itself make the two businesses joint employers. A bartender who works Friday for a caterer and Saturday for an unrelated venue has two separate employers, and each one tracks its own hours.
How does the FLSA joint employer test work?
Under the federal Fair Labor Standards Act, which covers minimum wage and overtime, the DOL rescinded its joint employer regulation in July 2021. On April 22, 2026, it proposed a new rule for the FLSA, FMLA and MSPA; the comment period closed June 22, 2026, and the rule is still a proposal.Where joint employment exists, each employer must make sure the worker receives all FLSA rights. For a business such as a staffing agency's client, the proposal weighs four factors; when all four point the same way, it says joint employer status is substantially likely. Does the business:
- Hire or fire the worker?
- Supervise and control the work schedule or conditions to a substantial degree?
- Set the rate and method of pay?
- Keep the worker's employment records?
What is the NLRB joint employer standard in 2026?
Under the National Labor Relations Act, which covers union organizing and bargaining, the National Labor Relations Board applies its 2020 rule. A business is a joint employer only if it possesses and exercises substantial direct and immediate control over one or more essential terms of employment, such as wages, benefits, hours, hiring, discharge, discipline, supervision or direction.A broader 2023 rule, which counted reserved or indirect control, was vacated by a federal court in Texas on March 8, 2024, and the Board formally withdrew it in February 2026. A joint employer under the NLRA can be required to bargain with a union and can be held liable for the other employer's unfair labor practices.
Is a venue a joint employer of agency staff?
It can be. The DOL names a staffing agency's client as a classic joint employment question. The agency usually hires, pays and keeps records, while the venue, caterer or festival operator often sets call times, briefs the crew and directs the work on the floor. The more of that day-to-day control the host holds, the stronger the case for joint employment.The practical stakes show up in pay disputes. If a banquet server's overtime goes unpaid, or a festival withholds wages over a cash shortage, the worker may claim against both the agency and the host. Each side's contract can say who reimburses whom, but it cannot take away the worker's rights.
California: client employer liability and Cal/OSHA citations
California goes further than federal law. Under Labor Code section 2810.3, a client employer shares liability with its labor contractor for unpaid wages and for missing workers' compensation coverage, with no need to prove joint employment. Businesses with fewer than 25 workers, or with five or fewer contracted workers at a time, are excluded, as are public entities.For safety, Cal/OSHA treats a festival site, stadium or venue as a multi-employer worksite. It can cite any employer that plays one of four roles, and one business can play several. An exposing employer can avoid a citation only if it meets every defense listed in Title 8, section 336.11. That is why an agency and a host can both be cited when a crew works without shade or water in the heat.
- Creating employer: caused the hazard.
- Exposing employer: its own workers were exposed to it.
- Controlling employer: responsible for safety on the site, by contract or in practice.
- Correcting employer: responsible for fixing the hazard.
Vertical vs horizontal joint employment
| Type | What it means | Event example |
|---|---|---|
| Vertical | The worker is employed by one business, and a second business that uses the work may also be an employer. | An agency employs a load-in crew; the venue's production team schedules and directs them. |
| Horizontal | The worker works for two related businesses that share control, so their hours in a week are added together for overtime. | A server works 25 hours at a hotel's banquet arm and 20 at its sister restaurant: 45 hours, with 5 at overtime. |
Joint employer tests compared (2026)
| Law | Covers | Test | Status |
|---|---|---|---|
| FLSA (federal) | Minimum wage, overtime | Proposed four factors: hire or fire, supervise, set pay, keep records | Proposed April 22, 2026; no final rule yet |
| NLRA (federal) | Union organizing, bargaining, unfair labor practices | Substantial direct and immediate control over essential terms | 2020 rule in force; 2023 rule withdrawn February 2026 |
| Labor Code 2810.3 (California) | Unpaid wages, workers' compensation | Client employer shares liability with its labor contractor | In force since 2015 |
| Cal/OSHA (California) | Workplace safety, including heat illness | Creating, exposing, controlling and correcting employers can each be cited | In force |
Frequently asked questions
Best practices
Spell out duties in the contract State who pays, who tracks hours, who handles discipline and who provides safety training, shade and water.
Keep one set of hours Share sign-in and sign-out times between host and agency so overtime is counted the same way by both.
Route discipline through the agency Hosts can report a problem and ask for a replacement, while the agency decides on warnings or removal.
Check state rules for each event California and some other states add their own client employer and safety rules on top of federal law.
Common mistakes
Relying on a contract label Calling the agency the sole employer does not help if the host sets pay, hires and fires in practice.
Assuming safety is only the agency's job Under Cal/OSHA's multi-employer rules, the host that controls the site can be cited for its own hazards.
Citing the 2023 NLRB rule Older articles still describe the 2023 standard, which a court vacated and the Board withdrew.
