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:
- 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.
- 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.
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