Q & A: Common mistakes employers make under FMLA
Q. “We have over 1000 employees and engage a number of temporary employees. Do we have any obligations to them under FMLA?”
A. Your question is a timely one. A recent decision (Grace v. USCAR and Bartech Technical Services, LLC, March 26, 2008) by the 6th US Circuit Court of Appeals provides insight into the obligations of employers that regularly use contract or temporary employees. The court addressed the issue of “joint employers,” finding that both the company (USCAR) and the temp agency (Bartech) had some measure of control over the employee’s work and working conditions, each with some measure of FMLA liability.
According to the regulations, “joint employment will ordinarily be found to exist when a temporary or leasing agency supplies employees to a second employer.” The appeals court found Bartech to be the “primary” employer and USCAR to be the “secondary” employer with liability under FMLA. Furthermore, this liability exists even if the secondary company does not have the 50 employees required under the FMLA definition of “employer.” The use of an “employment relationship” test, rather than 50-employee requirement, could be problematic if the rationale is applied to smaller employers in the future.
Q. “Our normal work week is 40 hours. Overtime is often required, and the average number of hours worked by many employees is 46. One such employee, who has been taking intermittent FMLA leave to care for his seriously ill spouse, feels he is entitled to 552 hours (12 weeks X 46), rather than 480 hours (12 weeks time x 40). Who is correct?”
A. Under the FMLA, the term “workweek” is the employee’s usual or normal schedule (hours/days per week) prior to the start of FMLA leave, and is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently. If the normal workweek is greater than 40 hours, hours worked above 40 hours must be included in determining the maximum amount of leave available to the employee under the FMLA.
Current regulations do not address the issue of counting missed overtime against the employee’s FMLA, although there are proposed regulations to address this issue.
Q. “We have an employee who worked part-time for several years and began full-time employment six months ago. While part-time she did not meet the hours of service requirement for FMLA, but combining the full and part-time hours for the past 12 months brings her over the 1,250 hours of service. Is she eligible for FMLA?”
A. Yes. An “eligible employee” is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, ANDIt’s important to note that the 12 months need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., Workers' Compensation, group health plan benefits, etc.), the week counts as a week of employment.
Q. “Can I move an employee scheduled to return from FMLA leave to a position with substantially less responsibility, if the pay and benefits are the same?”
A. Jobs are only equivalent within the meaning of FMLA, if they entail “equivalent employment benefits, pay and other terms of employment.” For instance, the jobs must involve the same or substantially similar responsibilities. Simply receiving the same pay and benefits is not enough. Earlier this year, the 7th US Circuit Court of Appeals decided a case, Breneisen v. Motorola that dealt with this issue.