Human Resources staff and managers should be aware that joint employment with another employer (for example, a temporary agency) can result in a hiring employer having early liability for providing FMLA leave.
This DOL Fact Sheet is a helpful resource for more information: https://www.dol.gov/agencies/whd/fact-sheets/28n-fmla-joint-employment
Q: We regularly utilize temporary employees, some of whom we hire permanently. Does the time they work as a temp (through an agency) count toward the 12-month and 1,250 hour eligibility requirements?
Yes. An employee is eligible to take FMLA leave when, among other things, he/she has worked for the employer for 12 months (which, of course, need not be consecutive) and worked 1,250 hours in the previous 12-month period. According to the Department of Labor, the time worked as a temporary employee does indeed count toward the 12-month service and 1,250 hour requirement.
In one short sentence in the FMLA regulations, the DOL sums up its position:
Joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a secondary employer.
Q. What main factors are considered in determining whether an employer is a primary or secondary employer?
The three main factors to consider are:
- Which employer has the authority to hire, fire, place or assign work to the employee;
- Which employer decides how, when and the amount the employee is paid; and
- Which employer provides the employee’s leave or other employment benefits.
Q. What are the FMLA responsibilities of the secondary employer?
- Count all jointly employed employees for determining FMLA coverage and eligibility;
- Refrain from retaliating or discriminating against an employee or interfering with FMLA rights;
- and “flag” former temporary staff in your system and try to capture past hours from temporary staff (and/or original date of placement at your organization) either at the time of hire or upon a request for leave.
Note: FMLA leave responsibilities for jointly employed employees generally fall on the primary employer. (Upon hire, this is your responsibility.)
Q. Do any responsibilities switch from the primary to the secondary employer under certain circumstances for FMLA?
The primary employer’s worksite should be used for determining employee eligibility (i.e., whether the jointly employed employee works at a worksite with at least 50 employees in 75 miles), unless the employee has physically worked at the secondary employer’s worksite for at least one year.
The secondary employer is responsible for restoring an employee returning from FMLA leave if it continues to use the same placement agency and the agency places the employee with the secondary employer.
Note: Review state laws for state-specific provisions.
Written by a Catapult Advisor.
