Temporary employees and FMLA eligibility
After being a temporary (temp) employee from a staffing agency for more than a year, Andrea is hired as a regular employee for a company in which she temped. Two months later, she announces she is pregnant and wants to take leave for the birth. She wants the leave to begin in about four months.
This begs the question: Does the time Andrea spent as a temp employee count toward her eligibility for leave under the federal Family and Medical Leave Act (FMLA)?
Why temp employees?
Employers have many reasons to turn to temporary employees in lieu of bringing on regular employees. Some industries are more prone to using this option. In a tight labor market, however, temp employees might be harder to come by because employers often end up bringing them on as regular staff with all the perks and benefits.
So, how do employers determine whether such employees meet the FMLA eligibility?
Joint employers
In situations involving temp employees, the employer and the staffing agency are considered joint employers. As such, the employer must count the time that an employee was working through a staffing agency at a host/client employer towards the FMLA eligibility criteria.
Joint employers might be separate and distinct entities with separate owners, managers, and facilities. Employees jointly employed by two employers — as are temporary employees — are counted by both employers in determining employer coverage and employee eligibility for leave. It does not matter whether or not an employee is on only one of the employer’s payrolls.
Primary and secondary employer
In joint employment relationships under the FMLA, the “primary” employer is responsible to all its employees for giving the notices required by the FMLA, as well as:
- Providing FMLA leave,
- Maintaining health benefits during leave, and
- Restoring employees to their same or an equivalent position when FMLA leave ends.
A “secondary” employer with a total of 50 or more employees, including all jointly employed employees, is prohibited from interfering with an employee’s attempt to exercise FMLA rights, or retaliating against an employee for opposing a practice that is unlawful.
The factors for distinguishing a “primary” employer from a “secondary” employer in joint employment relationships will depend upon specific details. Facets that help decide these roles include knowing which one has the authority and responsibility to:
- Hire and fire employees,
- Place them in jobs and assign their work,
- Make the payroll, and
- Provide employment benefits.
See our FAQ on which employees are eligible to take FMLA leave
What about Andrea?
Returning to the opening scenario, since Andrea’s time spent as a temp employee counts toward her eligibility, she has worked for the company more than 12 months.
If she has worked at least 1,250 hours in the past 12 months at the time leave is to begin, and works at a location with at least 50 company employees within 75 miles, she would be entitled to FMLA leave for the birth of her child.
Key to remember: Time spent as a temp employee while working for a host company counts toward the FMLA 12 months worked and the 1,250 hours worked employee eligibility criteria.
