Beware of this hidden FMLA danger
May 15, 2008 by Sam NarisiPosted in: FMLA, Latest News & Views
As if the law wasn’t tricky enough, one court has found a new way to rule against companies in FMLA suits.
An employee needed time off for a medical problem. When she came back, there was no job for her, so she sued. Sounds like a typical FMLA case, but here’s the twist:
The company had less than 50 employees, so normally it would have no FMLA obligations. But the woman was hired as an outside contractor through a staffing agency, which was covered by FMLA. So the woman had a right to take leave, and the company was liable for violating those rights.
The court’s reasoning
Like in most cases when temps or contractors are hired, the company was found to be a “joint employer” along with the agency - i.e., both companies exercised enough control over the worker to be considered employers, even though only one signed the paychecks.
According to the DOL, in cases like these, the “primary employer” (in this case, the staffing agency) has the responsibility of offering and granting leave, and informing employees about their rights. But the “secondary employer” (the company) is responsible for putting an eligible employee back into his or her previous assignment.
And in this case, the court rule that applies even if the company’s regular employees wouldn’t qualify for FMLA leave.
Cite: Grace v. USCAR
Tags: FMLA, small company, temps
June 12th, 2008 at 12:28 pm
I don’t understand why the court would rule if this was a “temp” hiring between a staffing agency and company. The usual reason a company gets a temp is to fill a vacant position “temporarily” until the position is permanently filled or to use a temp for an assignment for a specified period of time.
If the temp had to leave for a medical reason, why would the “company” be required to have that job open, as in FMLA, when that person returns…since it is a temp assignment, the staffing agency should supply another temp to continue or complete that assignment…it would be a “business necessity”.
I agree it should be the responsibility of the staffing company to provide FMLA, if the person/employee qualifies, but I’m left scratching my head as to why the company is liable. The staffing agency, by sheer virtue of its business purpose, could find another assignment for the person when they return…that is what they do.
This little issue may force companies to “rethink” using staffing agencies. I’m HR in Washington State.
Thanks,
Lynn Diak
June 18th, 2008 at 3:35 pm
I’m in agreement with Lynn. This is a temp coming through a staffing agency & who probably would not qualify for FMLA to begin with, unless she had worked for a business prior to this that she had accumulated the 1250 hours in addition to 1 year or 12 months of employment. Also, I would think that the staffing agency would be responsible for any benefits, workers compensation, etc. that she had.
June 27th, 2008 at 11:30 am
I was thinking exactly what Lynn wrote. Isn’t that why you use temps/contractors? This makes no sense.