The general rule of FMLA is that eligibility depends on having worked for an employer at least 12 months, having worked at least 1250 hours in the preceding year, and being located at a worksite where there are at least 50 employees within 75 miles. Joint employment is a special circumstance that gives rise to a specific set of rules for determining FMLA eligibility. There are many kinds of joint employment, but the most common instance is where an employee works for one employer but was placed there by another employer, typically an agency.
Which Employer is Primary?
Under FMLA, one employer will be considered primary and the other will be secondary. Agencies are usually considered primary, but if there is any question, factors that help determine which employer is primary include the following:
- authority to hire and fire
- authority to make work assignments or placements
- decisions about pay
- provision of leave and/or benefits
Which Employer Has to Provide FMLA?
Both employers must be analyzed when trying to determine the employee’s eligibility under FMLA, not just the primary employer who pays the employee.
In judging the minimum number of employees, FMLA usually looks to the primary employer location (i.e., where the employee is assigned or reports), but if the employee has worked at the secondary employer for at least 1 year, then the secondary employer’s location comes into play.
For example, let’s say that an employee works for Small Agency and is placed at Large Company. Even if the employee is not eligible for FMLA through Small Agency because there are fewer than 50 employees, the employee may be eligible through Large Company if there are more than 50 employees and the employee’s work with Large Company meets the 1-year employment and 1250-hour minimum qualifications. Conversely, if an employee works for Big Agency and is placed at Small Business, and if Small Business has fewer than 50 employees, eligibility for FMLA will likely flow through Big Agency, assuming the 1-year employment and 1250-hour minimum qualifications are met.
If the employee is eligible for FMLA through either employer, the primary employer is responsible for providing the leave, maintaining the employee’s health insurance benefits, and restoring the employee to equivalent work after the leave is over. If the primary employer is a staffing company and is still providing staff to the secondary employer, the secondary employer is jointly responsible for restoring the employee to the same or an equivalent position after the leave is over. Both employers are prohibited from interfering with FMLA or retaliating against the employee for having taken the leave, and each employer is liable for FMLA violations, regardless of whether the other employer is in compliance.
If you are jointly employed and believe you are eligible for FMLA but have been deemed ineligible by your employers, contact an employment and employment discrimination lawyer trusts for help.