OAR 839-007-0005
Jointly Employed Employees
(1)
All joint employers are responsible, both individually and jointly, for ensuring compliance with the provisions of ORS 653.601 (Definitions for ORS 653.601 to 653.661) to 653.661 (Preemption) and these rules. The bureau will be guided by joint employment standards found in Title 29, Code of Federal Regulations, Part 791, Section 2 and Part 825, Section 106.(2)
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 is to be viewed in its totality.(3)
A type of company that is often called a Professional Employer Organization (PEO) contracts with client employers to perform administrative functions such as payroll, benefits, regulatory paperwork, and updating employment policies. The determination of whether a PEO is a joint employer also turns on the economic realities of the situation and must be based upon all the facts and circumstances. A PEO does not enter into a joint employment relationship with the employees of its client companies when it merely performs such administrative functions. On the other hand, if in a particular fact situation, a PEO has the right to hire, fire, assign, or direct and control the client’s employees, or benefits from the work that the employees perform, such rights may lead to a determination that the PEO would be a joint employer with the client employer, depending upon the facts and circumstances.(4)
In joint employment relationships, the primary employer is responsible for giving required notices to its employees, providing sick time leave and other leave and maintenance of health benefits. Factors to be considered in determining which employer is the primary employer include but are not limited to: authority/responsibility to hire and fire, assign/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. Where a PEO is a joint employer, the client employer most commonly would be the primary employer.
Source:
Rule 839-007-0005 — Jointly Employed Employees, https://secure.sos.state.or.us/oard/view.action?ruleNumber=839-007-0005.