At the same time it issued its Administrative Interpretation on joint employment under the FLSA, the Labor Department issued sub-regulatory guidance on the joint employment relationship and the corresponding responsibilities of primary and secondary employers under the Family and Medical Leave Act. The guidance includes both an example and a chart to illustrate the specific responsibilities of primary and secondary employers under the FMLA.
Joint employer determination.
The fact sheet
, which was released in conjunction with Wage and Hour Division’s Administrator’s Interpretation No. 2016-1
on joint employment under the Fair Labor Standards Act (and the Migrant and Seasonal Agricultural Worker Protection Act), says that joint employment exists “when an employee is employed by two (or more) employers such that the employers are responsible for compliance with the FMLA.” The analysis used to determine whether there is joint employment under the FMLA is the same one performed under the FLSA. The joint employer analysis under the FLSA is also fleshed out in a separate fact sheet
also issued in conjunction with AI No. 2016-1.
In the FMLA fact sheet, the WHD notes the importance of joint employment in determining employer coverage and employee eligibility under the FMLA, because joint employers’ responsibilities under the FMLA vary depending on whether they are the primary or secondary employer of the employee taking FMLA leave.
Is the employer primary or secondary?
According to the WHD, where an individual is employed by two employers in a joint employment relationship under the FMLA, in most instances, one employer will be the primary one while the other will be the secondary employer. The fact sheet provides a list of factors that may be used to determine whether an employer is primary or secondary:
Determining FMLA coverage.
- 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.
- In the case of a temporary placement or staffing agency, the agency is most commonly the primary employer.
In determining employer coverage and employee eligibility under the FMLA, employees who are jointly employed by two employers must be counted by both employers, regardless of whether the employee is maintained on one or both of the employers’ payrolls, the fact sheet states.
The employee’s worksite is the primary employer’s office from which the employee is assigned or to which the employee reports, for purposes of determining whether a jointly employed employee works at a worksite where the employer employs at least 50 employees within 75 miles. But where the employee has physically worked for at least one year at a facility of a secondary employer, that location is the employee’s worksite.
Primary employer responsibilities.
Under the FMLA, the primary employer is responsible for:
- giving required notices to its employees,
- providing FMLA leave,
- maintaining group health insurance benefits during the leave, and
- restoring the employee to the same job or an equivalent job upon return from leave.
The primary employer is also barred from interfering with a jointly employed employee’s exercise of or attempt to exercise FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA. Primary employers must keep all FMLA-required records required with respect to primary employees.
The fact sheet makes the important point that a primary employer must meet all of its FMLA obligations, even when a secondary employer is out of compliance or does not provide support to the primary employer in meeting these responsibilities.
Secondary employer obligations.
Whether or not the secondary employer is an FMLA-covered employer, it is prohibited from interfering with a jointly employed employee’s exercise of or attempt to exercise FMLA rights, or from firing or discriminating against an employee for opposing a practice unlawful under the FMLA. Under certain circumstances, the secondary employer is responsible for restoring the employee to the same or equivalent job upon return from FMLA leave, for example, when the secondary employer is a placement agency client and continues to use the services of the agency and the agency places the employee with that client employer. Secondary employers also must keep basic payroll and identifying employee data as to any jointly-employed employees.
Secondary employers, of course, are also responsible for compliance with all FMLA provisions for their regular permanent workforce.