DOL ISSUES NEW GUIDANCE ON JOINT EMPLOYMENT UNDER THE FMLA

Between the U.S. Department of Labor (DOL) and the National Labor Relations Board, joint employment is quite the hot topic. Of course, we’re all over it here on our blog, which is why you need the details on the new Fact Sheet the DOL recently issued discussing joint employment in the context of the Family and Medical Leave Act (FMLA).Untitled

According to the DOL, joint employment exists “when a person is employed by two (or more) employers such that the employers are responsible for compliance with the FMLA.” Where a joint employer relationship exists under the FMLA, one employer is considered the primary employer while the other is the secondary employer, and each employer’s responsibilities under the FMLA depend on whether they are the primary or secondary employer of the employee taking the leave. Therefore, employers who think they possibly could be a joint employer need to analyze and determine their role to ensure compliance – preferably, well in advance of any request for leave.

The main factors to consider in determining whether an employer is a primary or secondary employer include:

  • who has authority to hire and fire, and to place or assign work to the employee
  • who decides how, when, and the amount that the employee is paid
  • who provides the employee’s leave or other employment benefits

Within the new Fact Sheet, the DOL provides the following breakdown of the responsibilities of primary employers vs. the responsibilities of secondary employers:

Responsibilities of Primary Employers:

  • Giving required FMLA notices to employees and providing FMLA leave
  • Maintaining group health insurance benefits during the leave
  • Restoring the employee to the same job or an equivalent job upon return from leave
  • Keeping all records required by the FMLA with respect to primary employees
  • Not interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA

Responsibilities of Secondary Employers:

  • Not interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA
  • Restoring the employee to the same or equivalent job upon return from FMLA leave in circumstances where the secondary employer is a client of a placement agency, continues to use the services of the agency, and the agency places the employee with that client employer
  • Keeping basic payroll and identifying employee data with respect to any jointly-employed employees
  • Complying with all provisions of the FMLA for its regular, permanent workforce

Importantly, the DOL noted in the Fact Sheet it released that 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 its responsibilities.

The scenario where joint employment most commonly arises is when an employee is placed by a temporary or staffing company.  The DOL notes that in this situation, the agency is most commonly the primary employer. The Fact Sheet contains a helpful example of how FMLA responsibilities are shared and divided between a large medical staffing company and its client hospitals. It also contains a chart that nicely summarizes the respective responsibilities of a primary and secondary employer.

While most of the attention surrounding joint employment has focused on wage and hour liability or traditional labor law implications, the DOL has reminded employers everywhere that the concept is not so limited, and that government agencies are expanding enforcement of their laws through the lens of joint employment. If you are a temporary employer, or are an employer that uses those services or somehow acts in close coordination with another entity when it comes to your workforce, it’s probably a good idea to closely audit – perhaps together with competent counsel – whether any of your present employment practices may expose you to joint employment liability.

 

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
 
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