Who is an Employer in the Triangular Employment Relationship? Sorting Through the Definitional Confusion

Employers in the United States are increasingly utilizing staffing firms, employee leasing firms, temporary employment agencies
and other third parties to help manage contingent labor in their organizations. The use of such triangular relationships creates
complexities in the rights and responsibilities of each party, partially due to the variation in how U.S. employment law defines
employers and employees across statutes. We analyze the various definitions of employee and employer across key U.S. employment
statutes (e.g., Civil Rights Act of 1964, ADA, FMLA, FLSA), tests used by the courts in their decision making, and IRS regulations and evaluate the impact of these
definitions on the use of contingent employees in triangular relationships. We review existing case law relevant to discrimination
and non-discrimination statutes and identify key areas of risk and responsibility for both the individuals employed as contingent
workers and firms that use contingent labor. Finally, we offer recommendations for strategically managing contingent labor
in the current legal context.