Avoid These FMLA Traps with Joint Employment

nurse - FMLA leave and joint employment-359321_1920The Family and Medical Leave Act (FMLA) is already one of the hardest employment laws to comply with. Add joint employment into the mix, and the level of difficulty further increases.

Here are some pointers for handling FMLA issues when joint employment is likely to exist:

Issue 1: Is there Joint Employment?

To determine whether two companies are joint employers under the FMLA, the Economic Realities Test is used. This is the same test used under the Fair Labor Standards Act (FLSA). (See this post for a recent development that threatens to expand the definition of joint employment under the FLSA.)

The DOL has advised that in most staffing agency relationships, there is joint employment.

Issue 2: How Does Joint Employment Affect An Employee’s FMLA Eligibility?

In this post, we addressed how service time as a temp counts toward the one-year and 1250-hour requirements for an employee’s FMLA eligibility. The same holds true for current staffing agency workers, with a few additional items to remember.

One of the requirements for FMLA eligibility is the existence of 50 employees within a 75-mile radius. So you thought counting was easy? Here are two rules to remember:

  • Staffing agency workers count for both the staffing agency and the company for whom services are being provided.
  • When applying the 75-mile radius rule, the staffing agency worker’s worksite is the location from which work is assigned, unless the worker has been working at a location for more than a year, in which case the physical worksite is used.

Issue 3: Who Is Responsible for What?

The DOL has published this handy dandy Fact Sheet, which describes the FMLA obligations of “primary” and “secondary” employers. In staffing agency relationships, the staffing agency is the primary employer, and the company receiving the services is the secondary employer.

Responsibilities of the primary employer (the staffing agency):

  1. Provide FMLA Notices;
  2. Provide FMLA leave to eligible employees;
  3. Maintain group health insurance benefits during the leave;
  4. Restore the employee to the same job or an equivalent job upon return from leave;
  5. Keep all records required under FMLA for its primary employees.

The primary employer is also prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA.

Responsibilities of the secondary employer:

  1. Restore an employee to the same or equivalent job upon return from FMLA leave;
  2. Keep identifying information and payroll records for any jointly-employed employees; and
  3. Comply with all the provisions of the FMLA for its regular, permanent workforce.

A secondary employer is also prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA.

Are we having fun yet?

© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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