DOL doubles down on joint employment under the FMLA

Yesterday, we looked at the DOL’s recent guidance on joint employment under the Fair Labor Standards Act. Simultaneously with its FLSA guidance, the DOL also published guidance on joint employment under the FMLA, and it’s definitely worth you time.

Joint employment issues under the FMLA differ from those under the FLSA because the FMLA requires one employer to be primarily responsible for the maintenance of employee leaves of absence. Thus, the DOL differentiates between a primary employer and a secondary employer under the FMLA.

Factors to consider in deciding which company is the primary 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; and,
• who provides the employee’s leave or other employment benefits.

The DOL also makes it clear that in the case of a temporary placement or staffing agency, the agency usually is the primary employer.

So, what are the differences between the FMLA responsibilities of a primary versus a secondary employer? The DOL breaks it down in a handy chart:

FMLA Responsibility	Primary Employer	Secondary Employer
Count jointly-employed employees for coverage and eligibility determinations	Yes.	Yes.
For employee-eligibility determination, use its worksite for the eligibility test (50 employees within 75-miles of the worksite)	Yes, unless the employee has physically worked at the secondary employer’s facility for at least one year.	No, unless the employee has physically worked at the secondary employer’s facility for at least one year.
Provide FMLA notices to the jointly-employed employee	Yes.	No; however the secondary employer must provide FMLA notices to its own employees.
Provide FMLA leave to the jointly-employed employee	Yes.	No; however the secondary employer must provide FMLA leave to its own eligible employees.
Maintain benefits for the jointly-employed employee	Yes.	No; however the secondary employer must maintain benefits for its own employees who take FMLA leave.
Restore the jointly-employed employee to work	Yes.	No, unless the secondary employer is continuing to use the placement agency and the agency places the employee with that secondary employer.
Not retaliate, discriminate or interfere	Yes.	Yes.
Keep records	Yes, the primary employer keeps all required records.	Yes, the secondary employer keeps payroll data and identifying employee information.

2016 is shaping up as the year of the joint employer. If this issue is not on your business radar, it’s most definitely time to re-calibrate.