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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

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