DOL Doubles Down on Joint Employment Under the FMLA

In my last post, I looked at the DOL’s recent guidance on joint employment under the Fair Labor Standards Act. Simultaneously with its FLSA guidance, the DOL also published guidance on joint employment under the FMLA, and it’s definitely worth you time.

Joint employment issues under the FMLA differ from those under the FLSA because the FMLA requires one employer to be primarily responsible for the maintenance of employee leaves of absence. Thus, the DOL differentiates between a primary employer and a secondary employer under the FMLA.

Factors to consider in deciding which company is the primary employer include: 

• 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.

The DOL also makes it clear that in the case of a temporary placement or staffing agency, the agency usually is the primary employer. 

So, what are the differences between the FMLA responsibilities of a primary versus a secondary employer? The DOL breaks it down in a handy chart: 

 

This year is shaping up as the year of the joint employer. If this issue is not on your business radar, it’s most definitely time to re-calibrate.