RBS News

- Does the time that an employee works as a temp through an agency count toward the 12-month and 1,250 hour eligibility requirements of the Family Medical Leave Act (“FMLA”)?

 - Yes.  The Department of Labor has taken the position that time worked as a temporary employee will count towards the eligibility requirements of the FMLA.   The DOL relies on 29 CFR 825.106 (b)(1) which provides that “joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a secondary employer.”  Courts have generally supported this position finding that a temp’s employment begins upon assignment to the secondary employer by the temporary agency, rather than upon subsequent permanent hiring.  See e.g. Miller v. Nordam Group, Inc., Case No. No. 12-CV-563-TCK-PJC, 2013 U.S. Dist. LEXIS 164299, (N.D. Okla. Nov. 19, 2013).

 

Keep in mind that the primary employer, the temporary agency, is responsible for providing the required FMLA notices, administering FMLA leave and maintaining health benefits.  However, while the hiring firm, secondary employer, does not grant FMLA leave to temporary employees, it does have to count temporary employees as part of its contingent when determining if it meets the 50 or more criterion. It must also allow a temporary employee returning from FMLA leave to continue working at its site if it continues to utilize an employee from the temporary placement agency and if the agency chooses to place the employee with the secondary employer.  The secondary employer must reinstate the temporary worker even if that means letting another temporary worker who was hired to replace the worker on leave.

If you have any questions regarding FMLA, please do not hesitate to contact me at 216-447-1551.