In January 2016, on the heels of the release of the Administrator’s Interpretation addressing joint employment under the Fair Labor Standards Act (“FLSA”), the U.S. Department of Labor’s Wage and Hour Division (“WHD”) published Fact Sheet #28N to address joint employment under the Family and Medical Leave Act (“FMLA”).
Employers covered by the FMLA have various responsibilities such as providing required notices and restoring employees to appropriate jobs upon return from leave, among others.
However, as with the FLSA and other federal laws, an employee can be employed by more than one employer – a determination that makes each employer responsible for compliance with the FMLA. Joint employment is analyzed under the FMLA in the same manner as under the FLSA – by examining either the degree of association between two employers (horizontal joint employment) or whether a worker is economically dependent on two employers (vertical joint employment).
The Fact Sheet highlights the division of FMLA responsibilities when an employee is jointly employed by two employers. The responsibilities depend on whether an employer is the primary or secondary employer. A primary employer generally is the entity that:
(1) Has the authority to hire, fire and place or assign work to the employee;
(2) Decides how, when and the amount the employee is paid; and
(3) Provides the employee’s leave or other employment benefits.
The Fact Sheet specifically states that a temporary placement or staffing agency will commonly be the primary employer.
Primary employers are responsible for giving required notices, providing FMLA leave, maintaining group health insurance benefits during the leave, and restoring the employee upon return from leave. Primary employers are also prohibited from interfering with a joint employee’s exercise of his or her rights under the FMLA and must abide by its anti-discrimination and anti-retaliation provisions.
Secondary employers (whether covered by the FMLA or not) of FMLA-eligible joint employees are also subject to the FMLA’s prohibition against interference and its antidiscrimination and anti-retaliation provisions. Additionally, secondary employers may have job restoration obligations in certain situations.
Both primary and secondary employers must count joint employees for purposes of determining whether the employers are covered by the FMLA and whether the employees are eligible for leave.
Potential Impact on Employers
Employers should analyze their own worker arrangements, if such arrangements involve other entities, to determine whether they may be joint employers with respect to their employees.
Leech Tishman’s Employment Practice Group has extensive experience working with the Department of Labor and other federal, state and local employment agencies. We have advised clients on their obligations under the FMLA and are available to assist you in evaluating whether you have responsibilities under the FMLA as a joint employer.
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