As you probably know, the Family Medical and Leave Act only applies to companies who employ 50 or more employees (within a 75 mile radius) each working day during at least 20 calendar weeks in the current or preceding calendar year. But how do you get to 50? Do part-time employees count? How about temporary employees? Does the owner of the company count toward the 50?
The Department of Labor (DOL) recently issued a response to letter requesting clarification on this topic. In that response, the DOL clarified certain areas, stating:
- Employees on paid and unpaid leaves of absence are counted as long as there is a reasonable expectation that the employee will return to active employment.
- Where there is no continuing employment relationship (e.g., employee is temporarily or indefinitely laid off), or where the employment relationship does not continue for each working day of the workweek, the employee is not counted.
- When there is a “joint employer” (e.g., employee leasing or temporary placement arrangements) employees who are jointly employed must be counted by both employers, whether or not they are maintained on only one employer’s payroll.
- Whether an owner counts toward the 50 is fact specific and depends largely upon whether an employment relationship existed between the business entity and the “owner.” In general, whether an individual is a true owner or partner as opposed to an employee depends on whether he or she acts independently and participates in management or instead is subject to the control of the organization.
- Independent contractors do not count towards the 50, however be sure they are truly contractors under the DOL’s definition and not just labeled that way for your convenience. The DOL can reclassify your contractors if it determines they are truly employees.
Particular complications arise when companies have all of these types of employees and their use varies from week to week. The DOL listed some examples to clarify these situations. Assume in each example that the company at issue has 42 full and part time employees.
- Example One: The temporary service agency provides the company with five day laborers in addition to five or six routine temps. The same five day laborers work for the company all week. In this example, the company would count the 42 employees, the five or six routine temps, and the five day laborers, as the day laborers are jointly employed by the client employer each working day of the week and there remains a continuing employment relationship with the client employer for the week. Total employees for the week: over 50, so this week is counted toward the 20 workweek threshold.
- Example Two: In addition to the company’s regular employees and the five or six routine temps, the temporary service provides three day laborers each day, but not the same three workers. You would count the company’s regular employees and the five or six routine temps as in Example One above. The day laborers in this example need not be counted as no day laborer worked for the company each day of the week or appeared to have a continuing employment relationship with the client employer. Total employees for the week: Under 50 so this week would not be counted.
- Example Three: The Company needs six day laborers one day and three each of the following three days, in addition to regular employees and five or six routine temps. In this case, the company would count its employees and the routine temps. The day laborers need not be counted as no day laborer worked for the client employer each working day of the week or appeared to have a continuing employment relationship with the client employer. Total employees for the week: Under 50 so this week would not be counted.
Always remember determinations of compliance, eligibility and other issues under the FMLA are very fact-specific. If you have any questions about FMLA and your business, contact Waltz, Palmer & Dawson, LLC at (847)253-8800.