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How to get away with cheating your employees

And how the PJC is working to stop it

February 4, 2016

Step One: Get a subcontractor to hire your workers.

Some employers try to evade their legal obligations to workers through layers of subcontracting. Despite the supposed outsourcing, these employers still direct the work and incorporate it into their business operation. But when people start asking why the workers weren’t fully paid, these employers point to the subcontractors and try to wash their hands of the problem.

That’s not exactly legal. The Public Justice Center has long thought that this widespread practice violates the Fair Labor Standards Act, and this month, we filed our opening brief in Salinas v. Commercial Interiors, arguing that Commercial Interiors was responsible for failing to pay drywall workers that it employed jointly with its subcontractor. Under the FLSA, a business employs a worker when the work he or she performs is integrated into an economic unit of the business’ overall operations, so that the tasks are essential to the business’ mission and under its control. Commercial Interiors sells interior finishing services, including drywall installation. The brief asserts that Commercial Interiors employed the drywall workers because the workers performed the same work as Commercial’s own drywall employees and the work was integrated into, and integral to, Commercial’s business. As the employer, then, Commercial Interiors was just as responsible as its subcontractor for failing to pay for overtime. Although this standard was adopted long ago by the Supreme Court, the U.S. Court of Appeals for the Fourth Circuit has seldom addressed it.  We hope that oral argument will be granted and look forward to it. Sally Dworak-Fisher of our Workplace Justice Project penned our brief, along with co-counsel at James & Hoffman, Darin Dalmat and Kathy Krieger. We are also thankful for the two amicus briefs filed, one by the National Employment Law Project, Centro de los Derechos del Migrantes, and Laborers’ International Union of North America Mid-Atlantic Regional Organizing Coalition, and the other by the U.S. Department of Labor.

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