With more companies turning to temporary and leased employees to meet staffing needs, some tricky legal issues can come up. For example, employees are only eligible for family leave after they’ve worked for you for 12 months. But what if a person spent some of that time as a temp through an employment agency? According to federal regulations and a new court ruling, temp time counts when calculating how long someone has worked for you for purposes of family leave eligibility. Here’s how this impacts your family leave obligations and your recordkeeping practices.
Temp Hired As Regular Worker
Rufino Salgado was a temporary worker for Matthews Temporaries and was sent to work at CDW Computer Centers. Two months later, CDW hired Salgado as a regular employee.One year and two days after Salgado first began working at CDW as a temp, he needed emergency foot surgery. Salgado told his supervisor he couldn’t work for the next two weeks while he recuperated. When he didn’t return to work as scheduled, Salgado asked his employer for another week off, but CDW terminated him instead.
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
One-Year Eligibility Requirement
Salgado sued, claiming CDW violated the federal Family and Medical Leave Act, which applies to employers with 50 or more workers. Under the law, employees can take up to 12 weeks of unpaid leave each year for specified reasons, including an employee’s serious health condition. Only employees who have worked at least 1,250 hours for you in the preceding 12 months are eligible.
Temp Time Counts
CDW argued Salgado was not eligible because he had been a regular company employee for only 10 months. But Salgado said his time as a temp should count toward the 12-month minimum. A federal district court agreed with Salgado. Although the case did not arise in California, it relied on federal regulations that do apply here. They clearly state that when you and an employment agency both exercise control over an employee, you may be considered ‘joint employers.’ Therefore, California courts are likely to reach the same conclusion–that the time a worker spends as a leased or temporary employee counts as time worked for you when determining family leave eligibility.
New Recordkeeping Details
Due to these regulations, you will need records that you may not now routinely keep. When an employee asks for family leave, you’ll have to know when they started working for you, regardless of when they went on your payroll. One solution is to have a question on your employment application such as “Have you ever worked for this company, directly or through an employment agency? If so, when?” Then note this information in the employee’s file.