Yesterday’s Advisor explored employer responsibilities when it comes to joint employment. Today we’ll take a look at the responsibilities of the secondary employer.
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By Susan Schoenfeld, JD, Senior Legal Editor
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 Family and Medical Leave Act (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 an equivalent job upon return from FMLA leave (e.g., 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 provisions of the FMLA for its regular, permanent workforce.
Chart: Comparing Joint Employer Responsibilities Under the FMLA
Perhaps the most helpful information in DOL’s new FMLA joint employer fact sheet is a one-page chart. The chart outlines the responsibilities that primary and secondary employers have under the FMLA, including eligibility, notice, provision of leave, benefits, job restoration, and recordkeeping responsibilities.
Resources
For more information on DOL’s new FMLA joint employer guidance, see:
- DOL’s blog: Are you a joint employer?
- WHD portal: Joint employment guidance