The ABC’s of FMLA Joint Employment

by | Apr 13, 2017 | Blog

  • Integrity HR

With such a short acronym, you would think that the gist of FMLA would be as easy to pick-up as your ABC’s.

But, with a variety of provisions and requirements, human resource professionals would be quick to tell you that understanding the Family Medical Leave Act is a lot more like learning proper grammar than a catchy kindergarten jingle.

Even the most seasoned employers may not be fluent in a piece of legislation called FMLA joint employment.

The ABC’s of FMLA Joint Employment

FMLA joint employment is “when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statue.” (Labor, Fact Sheet #35: Joint Employment Under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 2017).

If that’s all Greek to you, don’t worry! We’ve put together a brief translation of how FMLA joint employment may influence your organization and employer responsibilities. We’ve tried to make it as easy as A – B – C!

A: The Affect

So, what does it mean for you if your employee is eligible for FMLA but you’re not their sole employer? How will an employee’s joint employment status affect your company?

The FMLA explains, “when an individual is employed by two employers in a joint employment relationship under FMLA, in most cases one employer will be the primary employer while the other will be the secondary employer.”

Naturally, your next question should be, “well, how do I know if my company is primary or secondary?”

Figuring out which employer is primary or secondary depends upon particular details of each situation, but the U.S. Department of Labor provides a few guiding questions to help you make a determination. Consider the following:

  • Who has the 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?

B: The Bottom-line

We get it – what you really want to know is what you have to do to be compliant.

The bottom line is that your requirements as an employer are contingent upon your status as primary or secondary as well as particular circumstances unique to each employee. Below is a brief overview of general responsibilities for both primary and secondary employers.

Primary employers are required to…

  • Give required notices to employees
  • Provide FMLA leave and restore employees to their job upon return
  • Maintain group health insurance benefits during employees’ leave

Secondary employers are required to…

  • Restore employees to their job upon return in certain circumstances
  • Maintain basic payroll and employees’ data

Neither primary nor secondary employers are allowed to prevent their employees from exercising their FMLA joint employment rights.

C: The Considerations

As with the other facets of the FMLA, employer responsibility and employee eligibility may be influenced by unique circumstances. To ensure that you understand your particular relationship with FMLA joint employment, you should take into account some additional considerations.

Is your employee hired temporarily or through a staffing agency? If so, in most cases the agency is the primary employer.

Are you a primary employer, but not receiving support from the secondary employer? Primary employers are required to fulfill all of their responsibilities regardless of whether or not the secondary employer is compliant.

Are you a secondary employer, but the eligible employee is not maintained on your payroll? You must count jointly-employed employees when determining employer coverage and employee eligibility for FMLA, whether they are maintained on one or both of the employers’ payrolls. Employee eligibility is true for the secondary employer if the employee has worked for the secondary employer for at least one year.

Whether you’re studying the rules of a language or the rules of FMLA joint employment, both become easier with time and practice.

For more information on FMLA joint employment guidelines and regulations, visit the U.S. Department of Labor fact sheet here.

You’ll be singing your FMLA ABC’s in no time!

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