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FMLA Eligibility Question - quick question
Benefits & Compensation
FMLA Eligibility Question - quick question
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I recently read some case law that leads me to believe that I should be counting prior service toward the 1 year eligibility for FMLA (see below). I have several cases where we had a temp working for
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Forums » Topic Forums » Benefits & Compensation » FMLA Eligibility Question - quick question
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FMLA Eligibility Question - quick question
posted at 10/13/2008 8:55 AM EDT
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Posts: 7
First: 12/5/2007 Last: 11/11/2008 |
I recently read some case law that leads me to believe that I should be counting prior service toward the 1 year eligibility for FMLA (see below). I have several cases where we had a temp working for us for 2 or 3 months and then was hired on. If we only counted the time the employee was hired on by us, he would not be eligible, however, if we counted the temp time, he would be eligible.
I want to do the right thing and was wondering if anyone counts previous service either as a rehired employee or temp toward FMLA? Thanks! The Court in Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633 (1st Cir. Dec. 18, 2006), is requiring employers to include prior periods of employment--in this case, up to five years in the past--in determining whether employees qualify for statutory leave. A car salesman who had worked for a dealership for five years and then left his employment returned to work at the dealership after a lapse of five years. Seven months after rejoining the company, he missed several weeks of work because of a back injury. After almost two months of intermittent absences from the job, the company terminated the salesman's employment, causing him to file suit against the dealership for violating the FMLA. The salesman claimed his employment at the dealership over five years earlier should have been included in calculating whether he had been employed for at least 12 months prior to applying for FMLA leave, to make him eligible for leave under the Act. The FMLA allows "eligible employees" to take medical leave for a serious health condition that prevents the employee from performing the functions of his or her job, among other things. To qualify, the leave applicant must have been employed "(i) for at least 12 months by the employer with respect to whom leave is requested…; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." Thus, while the hours requirement refers to a "previous" 12-month period, the months employed requirement does not. The United States Department of Labor (DOL) at one time attempted to clarify this by stating, "The 12 months an employee must have been employed by the employer need not be consecutive months." But the question remained: how far in the past might be the non-consecutive periods of employment? The trial court in Rucker ruled that a five year hiatus in employment did not meet the requirements of the law. The court determined that neither Congress nor the DOL could have intended to allow an employee to cobble together two discrete periods of employment, separated possibly by many years, to become eligible for FMLA leave. The salesman appealed, and the Court of Appeals reversed. The First Circuit found that both the FMLA and the DOL's regulation were ambiguous. Therefore, it relied on the preamble to the regulation and a friend-of-the-court brief submitted by the Department at the Court's request. The DOL rejected the exclusion of employment experience more than two years prior to the date of re-employment and, in addition, indicated that a break in service of over five years would be at the "outer bounds of what is permissible." While declining to establish a "judge-fashioned rule" on the limits of breaks in service, the Court accepted the DOL's position at face value, holding that the complete separation from employment for a period of five years did not prevent the employee from counting an earlier period of employment in satisfying the FMLA's 12-month requirement. The DOL's rationale for counting periods of employment within two years of the renewed employment relationship rested in part on the federal requirement for employers to retain FMLA records for three years. However, this reasoning does not square with the DOL's willingness to allow employment five years distant from any current FMLA leave application. Whether the DOL will issue further clarifying regulations remains to be seen. In the meantime, unless other federal appeals reach different results, employers throughout the country would be prudent to aggregate past periods of employment, at least up to five years distant, when calculating the 12-month employment period for FMLA leave eligibility. |
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FMLA Eligibility Question - quick question
posted at 10/13/2008 9:30 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.110.htm
"(b) The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as ``at least 12 months,'' 52 weeks is deemed to be equal to 12 months." So yes, I agree that you need to look at all service. |
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FMLA Eligibility Question - quick question
posted at 10/15/2008 5:17 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I suggest reading through:http://www.dol.gov/esa/whd/opinion/FMLA/2004_04_05_1A_FMLA.pdf
and "For example, joint employment will ordinarily be found to exist when a temporary or leasing agency supplies employees to a second employer." from the FMLA regulations at :http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.106.htm This section is basically talking about whether the employer needs to count the temp as an employee. It goes on to state: "(c) In joint employment relationships, only the primary employer is responsible for giving required notices to its employees, providing FMLA leave, and maintenance of health benefits. Factors considered in determining which is the ``primary'' employer include authority/responsibility to hire and fire, assign/place the employee, make payroll, and provide employment benefits. For employees of temporary help or leasing agencies, for example, the placement agency most commonly would be the primary employer. (d) Employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employer's payroll, in determining employer coverage and employee eligibility. For example, an employer who jointly employs 15 workers from a leasing or temporary help agency and 40 permanent workers is covered by FMLA. An employee on leave who is working for a secondary employer is considered employed by the secondary employer, and must be counted for coverage and eligibility purposes, as long as the employer has a reasonable expectation that that employee will return to employment with that employer." Note the last part states COUNTED FOR COVERAGE AND ELIGIBILITY..... I still lean in on the side of counting the time. Everything I read in this section of the Regulations gives the employee the benefit of FMLA advantages from both the agency and the client company. My stance is actually the conservative one. If you count it, you are doing so to the benefit of the employee. If you do not and are wrong, it is at the detriment of the employee. |
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FMLA Eligibility Question - quick question
posted at 10/15/2008 6:01 AM EDT
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Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
Sorry, but it seems pretty clear to me from reading the above that only the primary employer, typically the agency payrolling the temporary employee, is responsible for administering FMLA for that employee in a typical employee lease arrangement. |
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FMLA Eligibility Question - quick question
posted at 10/15/2008 8:28 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I agree the agency is the one responsible to administer FMLA but both companies have to count those employees and possibly their time for eligibility based on my reading of the FMLA regulations.
This would only be used in a situation specifically like the OP put forth --- where a temp employee moved to a true employee situation. As long as they stay a temp, the agency rules and administers --And their time would count for FMLA through the agency NOT the client. But once they transfer, that is where it gets murky. Before dismissing it out of hand, I would strongly suggest the OP contact legal counsel on the subject, especially if this happens often. |
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FMLA Eligibility Question - quick question
posted at 10/15/2008 8:32 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Actually the OP posted in the other message that she had legal counsel review the situation and that counsel agrees with what I have posted....
I wish FMLA were easy to administer, but for murky issues, it can be a huge risk to the company. I always lean towards what is most beneficial to the employee. |
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