D.C. Mun. Regs. tit. 4, r. 4-1602

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 4-1602 - APPLICABILITY-COVERED EMPLOYERS-JOINT EMPLOYMENT

1602.1

Where two (2) or more businesses exercise some control over the work or working conditions of the employee, the businesses may be considered joint employers under the DCFMLA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities.

1602.2

Where the employee performs work which simultaneously benefits two (2) or more employers, or works for two (2) or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:

(a) Where there is an arrangement between employers to share an employee's services or to interchange employees;

(b) Where one (1) employer acts directly or indirectly in the interest of

the other employer in relation to the employee; or

(c) Where the employers are not completely disassociated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly, because one (1) employer controls, is controlled by, or is under the common control of the other employer (for example, a temporary agency employer).

Joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.

1602.3

A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship viewed in the totality.

1602.4

In joint employment relationships, only the primary employer is responsible for giving the required notices to its employees, providing DCFMLA leave, and maintenance of health benefits.

1602.5

Factors considered in determining which is the primary employer include authority or responsibility to hire and fire, assign, or place the employee, make payroll, and provide employment benefits. For employees of temporary placement agencies, for example, the placement agency most commonly would be the primary employer.

1602.6

Employees jointly employed by two (2) employers shall be counted by both employers, whether or not the employee is maintained on only one (1) of the employers' payrolls, in determining coverage and employee eligibility.

1602.7

Job restoration is the primary responsibility of the primary employer.

1602.8

The secondary employer is responsible for accepting the employee returning from DCFMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the primary employer, and the primary employer chooses to place the employee with the secondary employer.

1602.9

The secondary employer is also subject to § 1621 with respect to its joint employees, whether or not the secondary employer is covered by DCFMLA.

D.C. Mun. Regs. tit. 4, r. 4-1602

Final Rulemaking published at 38 DCR 4350, 4351 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10790 (November 19, 2010)

The Notice of Final Rulemaking published at 57 DCR 10789 (November 19, 2010) amends Chapter 16 of Title 4 by renaming it, "District of Columbia Family and Medical Leave Act." The Notice of Final Rulemaking also amends the existing the sections within Chapter 16, including renaming some of the sections. 4 DCMR § 1602 is formerly entitled, "Notice to be Provided to Employees."

Authority: The Director of the Office of Human Rights, pursuant to section 301(c) of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1403.01(c)) , and Mayor's Order 2009-45, dated March 31, 2009.