Opinion Letter Released by Department of Labor Provides Input on Counting Temp Workers for FMLA
The Department of Labor (DOL) released an opinion letter, on
November 7, 2004, regarding Family and Medical Leave Act of 1993 (FMLA)
pertaining to the use of temporary employees in the workforce and whether
employers should count them toward the FMLA "50 or
more employees" coverage
test.
In the letter, the DOL reviewed several concepts that are
critical in determining who is counted toward the coverage test.First, an employer must determine if the
employment relationship exists "as distinguished from a contractual one".Then determine if the employees (as opposed
to contractors) have a continuing employment relationship with the
employer.
Both the temporary agency and the employers, for FMLA rules,
may be required to consider employees hired through a temporary help
agency.The final determination on this
may depend upon the facts of the case.
The DOL stated, "Generally, a joint employment relationship
will be considered to exist where:
- There is an arrangement between employers to share an employee's services or to interchange employees;
- One employer acts, directly or indirectly, in the
interest of the other employer in relation to the employee;
- The employers are not completely disassociated with
respect to the employee's employment and may be deemed to share control of the
employee, directly or indirectly, because one employer controls, is controlled
by or is under common control with the other employer.
Essentially, the opinion found that if a temporary employee
is working on a weekly basis for an employer, that employee could then apply
under FMLA for both employers when counting employees.
FMLA allows employees to balance their work and family life
by taking reasonable unpaid leave for certain family and medical reasons. This
law provides certain employees up to 12 work weeks of unpaid, job-protected
leave a year, and requires the employer to maintain insurance coverage during
the leave under the same conditions as before the leave occurred.
To be eligible for FMLA leave, an employee must work for a
covered employer and:
- Have worked for
that employer for at least 12 months;
- Have worked at
least 1,250 hours during the 12 months prior to the start of the FMLA leave;
- Worked at a
location where at least 50 employees are employed or within a 75- mile radius.
A covered employer must grant an eligible employee up to a
total of 12 work weeks of unpaid leave in a 12-month period for one or more of
the following reasons:
- The birth of a
son or daughter, and to care for the newborn child;
- The placement
with the employee of a child for adoption or foster care, and to care for the
newly placed child;
- Care for an
immediate family member (spouse, child, or parent -- but not a parent
"in-law") with a serious health condition;
- When the
employee is unable to work because of a serious health condition.
In this Issue:
News Room sign-up
sheet | Archive |
