What FMLA compliance responsibilities fall on joint employers?

Author: Gloria Ju

When two or more employers simultaneously employ an employee, the employers are considered joint employers (e.g., an employer hires an employee through a temp agency). Each employer is responsible for Family and Medical Leave Act (FMLA) compliance in relation to the jointly employed employee. However, the responsibilities vary depending on whether a joint employer is a primary employer or a secondary employer (e.g., the temp agency is usually considered the primary employer while the hiring company is the secondary employer). Factors to consider in determining whether an employer is a primary or secondary employer include:

  • Who has the authority to hire, fire, place or assign work to the employee;
  • Who decides how, when and the amount the employee is paid; and
  • Who provides the employee's leave or other employment benefits.

All FMLA responsibilities for jointly employed employees generally fall on the primary employer. However, the secondary employer is also required to:

  • Count all jointly employed employees for determining FMLA coverage and eligibility;
  • Refrain from retaliating or discriminating against an employee or interfering with FMLA rights; and
  • Keep certain records (payroll data and identifying employee information).

Certain responsibilities switch from the primary to the secondary employer under certain circumstances:

  • The primary employer's worksite should be used for determining employee eligibility (i.e., whether the jointly employed employee works at a worksite with at least 50 employees in 75 miles), unless the employee has physically worked at the secondary employer's worksite for at least one year.
  • The secondary employer is responsible for restoring an employee returning from FMLA leave if it continues to use the same placement agency and the agency places the employee with the secondary employer.