• Temporary workers may still affect the Family and Medical Leave Act (FMLA) responsibilities of their company.
• Under FMLA regulations, temporary workers are “joint employees” of both organizations.
• Any relationship where the host employer exercises some control over the temporary worker, such as directing the day-to-day tasks, may create a joint or co-employment relationship under certain laws.

Employers should be aware that temporary workers — though hired through a staffing agency — may still affect the Family and Medical Leave Act (FMLA) responsibilities of their company. There are three areas of concern for employers when it comes to FMLA responsibilities:

• First, temporary workers might be eligible for FMLA through their staffing agency. As the primary employer, the staffing agency is responsible for administering FMLA notices and tracking leave. Because of this distinction, a host employer cannot interfere with the employee’s rights pertaining to the FMLA.
  For example, a temporary worker may need to seek leave from a long-term assignment in accordance with the FMLA. Upon returning from leave, the staffing agency must restore that worker to the same assignment, if it is available. A host company is not permitted to refuse to reinstate the worker, even if another worker has been brought in as a replacement. Courts have held that this responsibility exists even if the host company has fewer than 50 employees (and would not otherwise be subject to FMLA guidelines) because the worker’s primary employer is the staffing agency, which is subject to FMLA regulations.
• Second, temporary workers are counted as “employees” when determining employer coverage. According to FMLA regulations, temporary workers are “joint employees” of both organizations. For example, a company with 40 employees and 15 temps would have a total of 55 employees and would be obligated to follow FMLA regulations.
• Third, because of the joint employee framework, any time spent working as a temporary worker must be credited toward an employee’s eligibility for FMLA. To be eligible, the employee must have worked for the employer for at least 12 months in total, and for at least 1,250 hours during the 12-month period before taking leave.
  For example, if an individual was working as a full-time temp for eight months and was then hired on as a “regular” employee, the individual could become eligible for FMLA after another four months. At that point, the employee would have 12 months of total employment with the organization when including the joint employment time. This assumes the employee meets the other criteria, such as working at a location that has 50 or more employees within 75 miles.

Joint or co-employment

While the staffing agency is the primary employer for purposes of many laws, the host company is automatically a joint or “co-employer” for many situations. The term “co-employment” is often used interchangeably with “joint employment.” Employers must keep in mind that some obligations to “regular” employees under law must cover joint employees as well.

Many employers fear creating a co-employment relationship with a temporary worker who was hired through a staffing agency, even though it cannot be avoided in many cases (and does not necessarily impose additional obligations on the company). There is no single source for information on co-employment, in part because the concept applies differently depending on the relevant law and jurisdiction.

In most cases where a host company uses temporary workers from a staffing agency, certain co-employment obligations will automatically exist. Aside from FMLA considerations, a temporary worker is also protected by discrimination laws from actions by both the host company and staffing agency. A temporary worker could file a discrimination or harassment claim against the host employer for actions they take. Alternatively, a temporary worker could create liability if they are the offender, and the host employer fails to address misconduct (typically done by contacting the staffing agency to ask them to address the problem).

Additionally, the Fair Labor Standards Act (FLSA) addresses joint employment where an individual works to benefit more than one employer. For example, a host employer could be liable for recordkeeping violations or back pay if it asks a temporary worker to work without recording their hours or denies a lunch break while still deducting 30 minutes of pay for a meal period. Temporary workers should report such problems to their staffing agencies; and if a lawsuit arises, a host company could face liability.

As the employer of record, the staffing agency is responsible for tax deductions, completing a Form I-9 for new hires, and most other aspects of the employer/employee relationship. Even so, any relationship where the host employer exercises some control over the temporary worker (such as directing the day-to-day tasks) may create a joint or co-employment relationship under certain laws.