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By Susan Prince, JD, MSL, Legal Editor at BLR
FMLA and Joint Employment
The analysis for determining joint employment under the FMLA is the same as under the FLSA. According to the Department of Labor (DOL), when an individual is employed by two employers in a joint employment relationship under the FMLA, in most cases one employer will be the primary employer while the other will be the secondary employer. Determining whether an employer is a primary or secondary employer depends upon the particular facts of the situation. Factors to consider include:
- Who has authority to hire and fire and the ability to place or assign work to the employee;
- Who decides how, when, and the amount that the employee is paid; and
- Who provides the employee’s leave or other employment benefits.
In the case of a temporary placement or staffing agency, the agency is most commonly the primary employer.
Employer Coverage and Employee Eligibility Under the FMLA
The DOL states that employees who are jointly employed by two employers must be counted by both employers in determining employer coverage and employee eligibility under the FMLA, regardless of whether the employee is maintained on one or both of the employers’ payrolls.
For purposes of employee eligibility in determining whether a jointly-employed employee works at a worksite where the employer employs at least 50 employees within 75 miles, the employee’s worksite is the primary employer’s office from which the employee is assigned or to which the employee reports. However, if the employee has physically worked for at least 1 year at a facility of a secondary employer, then the employee’s worksite is that location.
Responsibilities of Primary Employers
Under the FMLA, the primary employer is responsible for giving required notices to its employees, providing FMLA leave, maintaining group health insurance benefits during the leave, and restoring the employee to the same job or to an equivalent job upon return from leave.
The primary employer is 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. Primary employers must keep all records required by the FMLA with respect to primary employees.
A primary employer must meet all of its obligations under the FMLA even when a secondary employer is not in compliance with the law or does not provide support to the primary employer in meeting these responsibilities.
Responsibilities of Secondary Employers
The secondary employer, whether an FMLA-covered employer or not, is 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.
The secondary employer is responsible in certain circumstances for restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer. Secondary employers must keep basic payroll and identifying employee data with respect to any jointly-employed employees.
A covered secondary employer is also responsible for compliance with all the provisions of the FMLA for its regular, permanent workforce.
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