January 20th, 2020
Nancy Van der Veer Holt
Ford & Harrison LLP
The following employers are covered by the FMLA:
Once an employer meets the 50-employee threshold, it remains a covered employer under the FMLA unless it does not employ at least 50 employees for 20 or more workweeks during the current or preceding year. The 20 workweeks can be from any point in the year - they need not be consecutive.
Example - An employer has 50 employees during 2017 and until July 2018. However, from August 2017 to December 2017, it never employs more than 45 employees. It therefore had less than 50 employees for all of 2017. Nonetheless, the employer remains covered under the FMLA throughout 2018 because it had more than 50 employees for more than 20 workweeks during the preceding (2017) calendar year.
The FMLA definition of employer also includes “a successor interest of an employer.” In determining whether an entity is a successor in interest to a covered employer, the same factors used under Title VII of the Civil Rights Act of 1964 and other similar legislation are considered. No one factor is dispositive; all relevant factors must be considered. Factors can include:
If an entity is classified as a successor in interest, an employee’s FMLA rights are determined as if he or she had continuous employment by a single employer. For example, a successor in interest that satisfies the employer coverage test must count length of service and hours worked for both the predecessor and the successor in interest to determine an employee's eligibility for FMLA leave.
Although not all courts will take such a broad approach, the Sixth Circuit has held that the "successor in interest" definition can apply even where there has been no merger or transfer of assets between two companies.
In the case of Cobb v. Contract Transp., Inc., the employee worked for Bryd Trucking delivering mail between Denver and Philadelphia. When Bryd Trucking lost the contract for this delivery route, Contract Transport Corp. took it over and hired the same employee as a driver for his former delivery route. Six months later, the employee needed FMLA leave for an illness, which was denied because he had not worked 12 months for Contract Transport Corp. The Sixth Circuit held that Contract Transport Corp. was a successor in interest even though it merely outbid Bryd for delivery routes and the two companies did not exchange any assets. Therefore, the court held that the employee satisfied the 12-month service requirement.
In addition to the special rules governing successor employers, the FMLA also addresses the concept of joint employers. Joint employer relationships commonly arise with temporary or leasing agencies, but can also arise in other contexts. A joint employment relationship exists when two or more businesses exercise some control over the work or working conditions of the employees, even if the businesses are separate entities with separate owners, management and facilities. Some factors that demonstrate that a joint employment relationship exists include:
These factors are not exclusive and all the aspects of a relationship must be considered. If a joint employer relationship exists, the relationship between the joint employers must be further examined to determine which employer is the primary employer and which is the secondary employer. The primary employer generally has the authority or responsibility to: hire, discharge, assign or place the employee, make payroll, and provide employment benefits. According to the FMLA regulations, a temporary or leasing agency is typically the primary employer.
The primary employer has different obligations under the FMLA. The primary employer must:
The secondary employer must:
In one representative case, an Ohio district court addressed the secondary employer’s obligation to return a temporary employee to work. In Stierl v. Ryan Alternative Staffing & Moore Wallace North America Inc., the employee worked for Ryan Alternative Staffing and was assigned a job with Moore Wallace. When the employee, Ms. Stierl, was released to return to work, Moore Wallace continued to utilize the services of Ryan Alternative Staffing’s employees. However Ryan Alternative Staffing did not contact Moore Wallace, asking it to put Ms. Stierl to work. Thus, the court found for Moore Wallace as the secondary employer since it was only obligated to accept Ms. Stierl if Ryan Alternative Staffing (the primary employer) requested it to do so.
In a 2014 case, Cuff v. Trans States Holdings, Inc., the 7th Circuit Court of Appeals determined that where a regional manager was on the payroll of one company that only employed 33 employees but also performed services for two other companies that employed over 300 people, the 50-employee threshold was satisfied because the employee count of all three companies should be aggregated. The Court concluded that the manager was jointly employed by all three companies because:
In January 2016, the DOL issued a FMLA fact sheet discussing joint employer status and further clarified the responsibilities of primary and secondary employers. Fact Sheet #28N: Joint Employment and Primary and Secondary Employer Responsibilities Under the Family and Medical Leave Act (FMLA) can be accessed at:
Under the FMLA, the legal entity that employs the individual is the employer. Thus, a corporation is considered a single employer, rather than considering its divisions or groups to each be separate employers. However, where one business entity merely has an ownership interest in another business, the businesses are considered separate employers under the FMLA (unless a joint employer or integrated employer test is met). To determine whether the integrated employer test is satisfied, the entire relationship between the entities is reviewed. The factors considered are:
If this test is satisfied, all employees of each entity that is part of the integrated employer are counted to determine both employer coverage and employee eligibility. This test is frequently used to determine if subsidiaries owned by the same parent company should be considered one employer. If so, all employees for each subsidiary are aggregated to determine if the 50-employee threshold is met.
An eligible employee is an employee of a covered employer who meets all of the following criteria:
More details on each of these requirements are discussed in the sections that follow.
The Airline Flight Crew Technical Corrections Act, which President Obama signed into law on December 21, 2009, revised the FMLA’s hours of service requirement for flight crewmembers and flight attendants (as defined in FAA regulations). As a result of the revision, a flight crew member now satisfies the hours of service requirement if he or she has both:
An employee’s eligibility status under the FMLA is not permanent. An employee’s eligibility must be re-determined at the beginning of a new 12-month measuring period. For example, if an employee requests leave October 1 through January 25 and is eligible for FMLA at that time, the employer needs to reevaluate the employee's eligibility on January 1 (assuming this employer uses the calendar year as its 12-month measuring period).
The employee need not have been employed for 12 consecutive months to qualify. For instance, if an employee worked for “Company ABC” three years ago for 24 months, he or she has satisfied the 12-month length-of-service requirement upon being rehired. The following rules also apply to the 12-month (52-week) service requirement:
Thus, any time that the employee has worked for the employer will count towards the service requirement. However, time that an employee worked for an employer prior to a continuous break in service of seven years or more need not be counted, unless the break in service was per a written agreement or collective bargaining agreement for either:
The 1,250 hours of service follows the Fair Labor Standards Act (FLSA) and looks only at the actual hours of work as defined by FLSA. Thus, time away from work due to vacation, holidays, sick time, FMLA leave, or a strike does not count toward the 1,250 hours.
As with the 12-month service requirement, hours worked as a temporary employee before becoming a regular full-time employee are considered when determining whether the 1,250-hour threshold has been met. Additionally, the hours an employee would have worked but for his or her military service are counted towards the 1,250-hour requirement. This time must be combined with the employee's actual hours worked.
Example - Beginning January 2, 2008, Amy worked for eight weeks as a temporary worker for ABC Inc. She was hired as a regular full-time employee on March 1, 2008. As a temporary worker and a full-time employee, Amy worked 30 hours per week. On February 2, 2009, she is involved in a car accident and needs a leave of absence. Amy fulfilled the 12-month requirement as of January 2, 2009, and assuming she worked 30 hours for at least 42 weeks, she exceeded the 1,250 hour requirement. As long as ABC Inc. has 50 employees within 75 miles and Amy has a serious health condition, her leave of absence will be protected by the FMLA.
The burden is on the employer to prove that the employee, whether exempt or nonexempt, did not work the requisite hours. If the employer cannot meet this burden, the employee is deemed to have worked 1,250 hours. Under the FMLA regulations, if an employer does not have sufficient records to clearly identify an employee’s work hours, the employer has the burden to show the employee did not work 1,250 hours in order to deny FMLA on this basis.
According to a DOL opinion letter, an employee's eligibility for FMLA leave under the 1,250-hour requirement is not reexamined once eligibility is determined for a specific, qualifying reason. Thus, if an employee requests intermittent leave for a chronic condition, he or she need only meet the 1,250-hour requirement upon the commencement of leave. If the requirement is met, that employee's eligibility is not reexamined until the next 12-month measuring period begins or he or she requests leave for a different reason.
An employer must have at least 50 employees within 75 miles of the employee's worksite in order for that employee to be eligible for leave. The distance between worksite locations is measured by surface miles (surface transportation) over public streets, roads, highways, and the like, by the shortest route from the facility where the eligible employee needing FMLA leave is employed. Several courts have concluded that the 75-mile requirement is measured by road miles not “as a crow flies.” The following rules apply:
It is possible for an employer to be covered by FMLA leave, but for none of its employees to be eligible because of this requirement. For example, If an employer employs a total of 200 individuals, but none of its facilities employs 50 or more employees (and each of its facilities are more than 75 miles apart), no employees will be entitled to leave under the FMLA.
Example 1 - If an employer employs a total of 200 individuals, but none of its facilities employs 50 or more employees (and each of its facilities are more than 75 miles apart), no employees will be entitled to leave under the FMLA.
Example 2 - An employer has three plants located on the east coast, each employing 40 employees. The plants are more than 100 miles apart. The employer employs 120 total employees and is, therefore, a covered employer under FMLA. However, no employee at any facility can satisfy the 50 employee within the 75-mile requirements; therefore, no employee is eligible for FMLA leave.
Where employees do not have a fixed worksite (e.g. a particular building/address), employees' "worksite" is defined as either:
Example 1 - If a company employs a salesperson who works out of his home in Nebraska, but all facilities are located in Tennessee, there are obviously less than 50 employees within 75 miles of the salesperson’s home in Nebraska. However, if the Nebraska salesperson reports to a Vice President of Sales in Memphis, Tennessee, the Nebraska salesperson’s worksite is the plant in Memphis, Tennessee. If the Memphis, Tennessee facility employs 100 employees, the Nebraska salesperson is eligible for FMLA leave, provided all other requirements have been met.
Example 2 - A construction company headquartered in New Jersey opens a construction site in Ohio. At the Ohio site, a mobile trailer is set up as the on-site office, and this Ohio site will become the FMLA worksite for employees hired locally who report to the mobile trailer for work assignment and the like. However, managers and superintendents from the New Jersey headquarters are sent to Ohio. For these managers and superintendents, the New Jersey headquarters is their worksite. These New Jersey employees are not counted in determining the eligibility of the Ohio-based employees, but are counted in determining the eligibility of the New Jersey employees.