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6 N.E. U. L.J. 347 (2013-2014)
To Suffer or Permit to Work: Did Congress and State Legislatures Say What They Meant and Mean What They Said

handle is hein.journals/norester6 and id is 371 raw text is: NORTHEASTERN UNIVERSITY LAWJOURNAL 'To Suffer or Permit to Work': Did Congress and State Legislatures Say What They Meant and Mean What They Said? James Reif Introduction Businesses are relying more and more on what is euphemis- tically termed an alternative workforce, consisting of individuals who work directly or indirectly for a company but who are not treated as that company's full-time employees. The alternative workforce includes, for example, so-called independent contractors, employ- ees of contractors, interns and persons whose services are obtained through temporary staffing agencies. Reliance on such alternative workers is prompted in substantial part by anticipated payroll, tax and benefit savings. This Article focuses on businesses' use of individu- als, hired by contractors engaged by the businesses, to perform work outsourced by the businesses and the courts' treatment of claims that such businesses are jointly liable for violations of those individ- uals' federal and/or state rights to minimum wages and/or overtime compensation. Particular attention is given to analysis of the argu- ment that businesses which engage in run-of-the-mill outsourcing should be deemed beyond the reach of such claims of joint liability. Companies often engage contractors to perform parts of their processes of production. For example, garment manufacturers reg- ularly engage sweatshop operators to accomplish the sewing and assembly phases of garment production. National or internation- al fast food empires induce the creation of small local companies, through the device of franchising, to accomplish preparation and sale of their fast food. A sweatshop operator or a fast food franchisee in turn employs individuals to perform the outsourced work. Such individuals who are victimized by violations of a minimum wage or overtime compensation law may seek redress through litigation. If they fear they will be unable to serve process on the contractor that directly employed them or that they will not be able to enforce a judg- ment against the contractor, the victims may seek redress from the company which outsourced the work they performed. As plaintiffs, they contend that, notwithstanding their direct employment by the contractor, the outsourcing company is jointly liable for the wage VOL. 6 NO. 2 347

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