Joint Employer Rule Coming from DOJ Requires Deliberate Action in Setting Evidence Rather than Napkin Contracting

The US Department of Labor recently proposed a rule, which if adopted, will increase the possibility that two distinct companies are determined to be a joint employer with respect to claims under the FLSA (wages/overtime), FMLA (leave), and MSPA (seasonal work). 

The DOL’s proposal provides two ways joint employment can be established:

1. Vertical Joint Employment: two or more employers benefit simultaneously from an employee’s work.
2. Horizontal Joint Employment: an employee works separate hours for "sufficiently associated" employers.

The DOL’s factors for determining vertical joint employment include:

1. Whether the person/entity hires or fires the employee
2. Whether the person/entity substantially supervises or controls the employee’s work schedule or conditions of employment 
3. Whether the person/entity determines the employee’s rate and method of employment
4. Whether the person/entity maintains employee’s employment records

DOL’s factors for determining horizontal joint employment include:

1. Whether an employer acts, directly or indirectly, in the interest of another employer
2. Whether there is an arrangement between employers to interchange employees
3. Whether one employer controls or is controlled by another employer, or is under common control with another employer

Businesses can submit comments until June 22, 2026 by two methods where the proposed rule should be identified by Regulatory Information Number (RIN) 1235-AA48:

• Electronic Comments: Submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Address written submissions to: Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210.

Should this be adopted, employment contracts and policy manuals are going to be the evidence needed to defend yourself from being named on a related entities wrong. This is not a time to napkin contract if you want to avoid great exposure. 

When wage and hour, leave, or seasonal worker claims expand into disputes over joint employer liability, the exposure can quickly spread across affiliated entities, ownership groups, management companies, and related businesses.

Lieb at Law, P.C. litigates complex employment disputes involving FLSA, FMLA, misclassification, and joint employer claims, while helping businesses build defensible agreements and operational structures before litigation begins.

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EEOC Warning on DEI: What General Counsel Must Fix Now

The Equal Employment Opportunity Commission has sent a clear message to employers: calling a program “DEI” does not change your obligations under Title VII. This is not a political issue. It is a legal risk.

The EEOC’s position is straightforward. Workers must be treated as individuals and judged on their skills, abilities, and merit, not on their race or sex as a general category, which violates Title VII and gives rise to reverse discrimination claims. According to the message from EEOC, a company cannot also be cute and evade these obligations by changing the name of their program from DEI to something like, “Inclusion & Diversity,” “Belonging,” “People & Culture,” or “Opportunity & Inclusion.”

Why This Matters to Employers

The risk is not limited to a formal hiring or promotion policy. It can arise from how opportunities are created, who gets invited, who gets mentored, who gets access to leadership development, who receives leads, and how internal messaging explains those decisions.

What the EEOC Is Really Targeting

EEOC is focusing on whether protected characteristics are being used, directly or indirectly, in employment-related decisions. That includes programs that may look polished, well-intentioned, and modern on paper, but still create unequal treatment in practice. The issue is not whether there is a noble goal, the issue is if someone is disadvantaged because of which demographic group they belong.

To avoid a claim, GCs should audit there:

• Recruiting pipelines designed to influence demographic makeup
• Leadership or mentorship programs limited to certain groups
• Training or advancement opportunities not equally available to all qualified participants
• Distribution of listings, leads, accounts, or customer-facing roles based on identity-driven assumptions
• Internal statements about targets, representation goals, or balancing outcomes
• Programs repackaged under softer labels but built on the same protected-class framework

The Problem with “Equal Outcomes” Thinking

One of the clearest signals in the EEOC’s letter is its rejection of workplace approaches that seek equal outcomes instead of equal treatment and equal opportunity. That matters because many employers spent years adopting programs built around representation goals, demographic benchmarks, and identity-based development tracks. Those approaches are now far more likely to be used against the employer as evidence.

In other words, a company can create legal exposure even when it believes it is doing something positive. Intent does not control the analysis. Structure does.

The Real Risk Is Often the Written Record

Most employers assume the danger lies in what they intended to do. In practice, the danger usually lies in what they wrote down. This is not restricted to the actual policy, but drafts, emails, and chats are also ripe to create danger. Also, there is a recent federal district court decision that cautions about asking AI about your policy because all of that is discoverable in litigation too. Website language, recruiting materials, employee handbooks, training decks, internal emails, chat messages, and policy documents can all become exhibits in a claim so be careful.

That is especially true where language suggests that a company is making decisions based on group identity rather than individual qualifications. Once that language exists, it becomes much harder to defend the program as neutral and lawful.

The EEOC Is Not Just Talking

Employers should not dismiss this as symbolism. The EEOC has expressly said it is prepared to use its full range of enforcement tools, including large-scale litigation, systemic cases, and pattern-and-practice claims. That means employers should expect scrutiny not only of isolated complaints, but of company-wide programs and recurring workplace structures. Also, private litigants are watching and you should expect reverse discrimination claims to tick up. 

What Employers Should Do Now

Employers should immediately review any initiative that touches hiring, promotion, training, mentorship, leadership development, access to opportunity, or internal eligibility criteria.

The goal is not to abandon workplace culture or professional development. The goal is to make sure programs are legally defensible. That means:

• reviewing all current and past DEI-related policies and programs
• removing eligibility limits tied to protected class
• rewriting language to focus on objective, business-related criteria
• eliminating references to quotas, balancing, or demographic targets
• documenting neutral reasons for how opportunities are allocated
• making sure managers and decision-makers are not improvising standards office by office

Bottom Line

The EEOC’s message is simple: employees must be treated as individuals, not as members of a group. If your company has programs that suggest otherwise, the fact that they were created under a DEI banner, or renamed under a softer title, will not shield them from scrutiny.

Contact Lieb at Law

Lieb at Law advises companies on discrimination risk, compliance strategy, and litigation defense. We help businesses identify exposure, restructure policies, and protect themselves before internal programs become the basis of a lawsuit or regulatory investigation.

Need a privileged review of your policies, recruiting materials, training programs, or internal initiatives? Contact Lieb at Law to conduct a compliance audit and address risk before it turns into a claim.

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DOL Proposes Another Independent Contractor Shift. Businesses Should Assume Litigation Is Coming.

On February 27, 2026, the U.S. Department of Labor’s Wage and Hour Division issued a Proposed Rule that may once again change how independent contractor status is determined under the Fair Labor Standards Act.

If finalized, this would be the third major shift in less than a decade.

The current standard took effect in 2024. Now the DOL is considering a return to the 2021 framework, with modifications.

The proposed return emphasizes two core factors:

1. The degree of control the worker actually exercises over the work; and
2. Whether the worker has a genuine opportunity for profit or loss.

The DOL’s stated reason is predictability. It argues that the 2024 “totality-of-the-circumstances” approach, where no factor carried predetermined weight, created uncertainty and discouraged legitimate independent contractor relationships. The agency believes a return to the 2021 “core factors” framework may reduce compliance costs and slightly increase independent contracting.

That is the policy argument.

The litigation reality is different.

This Is an Enterprise Risk Issue, Not a Technical HR Update

Independent contractor classification is no longer a drafting exercise. It is a balance sheet issue.

If misclassification is alleged, exposure can include:

• Unpaid wages and overtime
• Liquidated damages
• Attorneys’ fees
• Class or collective actions
• Parallel state claims under NY Labor Law
• Freelance Isn’t Free Act liability
• Retaliation claims
• Potential personal liability for owners and executives

If your revenue model relies on independent contractors, regulatory volatility does not reduce risk. It increases it.

Each swing in federal policy invites a new wave of audits, private litigation, and opportunistic claims.

Classification Risk Is Built Into How Your Business Operates

At Lieb at Law, P.C., we evaluate classification risk the way a litigator would, not the way a form agreement does.

We look at:

• Compensation and commission structures
• Control mechanisms in practice, not just on paper
• Use of technology for supervision or tracking
• Non-competes and restrictive covenants
• Termination authority
• Integration into core business functions
• How the model will appear to a jury

Independent contractor status is determined by economic reality. That reality is shaped by operations, not labels.

If your agreements say “independent contractor” but your workflows say “employee,” the contract will not save you.

Why Acting Now Matters

Public comment on the Proposed Rule is open through April 28, 2026. The final rule may look different. It may shift again in the next administration.

Waiting for regulatory stability is not a strategy.

The prudent move is to stress-test your model under both frameworks and determine:

• Where exposure exists today
• How a plaintiff’s lawyer would frame the case
• Whether your documentation aligns with actual practice
• Whether structural adjustments can reduce risk without breaking the business model

Independent Contractor Risk Audit

If your company engages independent contractors, now is the time to:

• Audit agreements and compensation structures
• Evaluate control and supervision practices
• Assess exposure under federal and state law
• Review notice, deduction, and payment compliance
• Align operational reality with legal positioning

Lieb at Law, P.C. represents businesses, founders, and executives in high-stakes misclassification and wage-and-hour litigation. We also conduct proactive classification audits designed to reduce litigation exposure before a claim is filed.

Regulatory instability is not a defense to misclassification. It is a reason to prepare.

To schedule a confidential strategy session, contact Lieb at Law, P.C.

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Circuit Court of Appeals Gives Plaintiffs a Tactical Way Out of Pre-Dispute Arbitration Clauses

In Bruce v. Adams & Reese, LLP, the 6th Circuit Court of Appeals held that a pre-dispute arbitration clause was invalid for an entire case because just one claim in the case involved sexual harassment based on a broad interpretation of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 ("EFAA"). Specifically, EFAA 402(a) provides that "at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute . . . no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute." At issue in this case was the definition of the term "case," and the Circuit Court defined that term as "encompassing a plaintiff's entire suit." Specifically, the Appellate Court held that "where a plaintiff brings multiple claims in a single suit against a party with whom she has an otherwise-valid arbitration agreement, and one of those claims alleges a 'sexual assault dispute' or a 'sexual harassment dispute,' the EFAA renders the arbitration agreement unenforceable with respect to each of the claims that comprise her case." As a result, a Plaintiff seeking to tactically avoid arbitration can plead a sexual harassment claim as well as their core claims to avoid the suit. However, an entity seeking to compel arbitration can counter, by not arguing that the other claims must still be arbitrated, but by arguing that the sexual harassment claim was not alleged under the applicable pleading standard in the first instance and nothing must be arbitrated. Nonetheless, the Appellate Court left "for another day the question of whether the Yost standard (federal pleading standard), the Diaz-Roa standard (Bell v. Hood’s jurisdictional standard), or some other standard represents the correct interpretation of the EFAA" when determining if the sexual harassment claim was properly alleged. There is going to be a lot of litigation coming on this issue because companies are not going to want to give up their pre-dispute arbitration clauses because creative Plaintiff's counsel have tactically negated arbitration obligations by loosely alleging a weak sexual harassment claim. 

Arbitration clauses are no longer bulletproof.

If your company relies on pre-dispute arbitration agreements, or you are challenging one, contact Lieb at Law, P.C. to assess your exposure and strategy now.

NYC Enacts Gender-Motivated Violence Protection Law

There is a new civil cause of action in NYC (Administrative Code of the City of New York section 10-1104) for crimes of violence motivated by gender that occurred prior to January 9, 2022. Now, any person claiming to be injured by a party who committed, directed, enabled, participated in, or conspired in the commission of a crime of violence motivated by gender may bring a civil claim against that party. This allows survivors to bring claims even if those claims would have otherwise been barred by the statute of limitations. However, the revitalization of claims is not permanent where claims brought under this law must now be commenced within 18 months of January 28, 2026. So, act immediately if this impacts you. Also, if you brought a claim between March 1, 2023 and March 1, 2025 that would satisfy the requirements of a cause of action under this section, you may now amend or refile (if dismissed) their claim to add a cause of action under this section. Finally, you can recover compensatory and punitive damages, injunctive and declaratory relief, attorney's fees and costs, and such other relief as a court may deem appropriate.