Many people start a new job working through a staffing agency, a temporary agency, or a placement service. Often, employers will use these agencies as an opportunity to give new workers a trial period to ensure they will be dependable employees who will be a good fit for permanent employment. Sometimes, the new workers will work for the temp agencies for a set period of time, such as six months, and then automatically become permanent employees of said company. Other times, the company will let workers continue at the staffing firm until it decides it wants to hire the particular workers.
One issue commonly arising once a worker is selected for permanent employment is: when is the new employee eligible for leave under the Family and Medical Leave Act (FMLA)? Under the FMLA, employees are not eligible for protected leaves of absence due to a serious health condition or for maternity leave until they have been employed for 12 months and have worked 1,250 hours in a one year period. Many employers tell their employees the one year does not start running until they become permanent employees, and the time they spent working for the temp agency does not count toward the one year. Those employers are wrong.
Temporary Employees Often Have Two Employers
The FMLA relies on a concept called “joint employment”, which means a worker can be employed by more than one company for FMLA purposes. The FMLA provides that “where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under the FMLA.” Regulations implementing the FMLA specifically state joint employment will “ordinarily” be found when a temporary placement agency supplies employees to an employer. Joint employees are counted for both employers for determining employer coverage and employee eligibility.
Several courts have considered whether time working for a temp agency counts toward an employee’s 12 months of service time, and they have all held that it does. In Ohio, one federal court held that as long as a company permits you to work at its facility, even if you are technically employed by a staffing firm, you are an employee of that company for purposes of the FMLA, and time spent working as a temporary employee counts toward the required 12 months of work to become eligible for the FMLA.
The FMLA also provides that employers need to employ 50 or more workers before they are required to provide FMLA leave to their employees. Some employers rely heavily on temporary workers and may not have 50 or more permanent employees. The joint employment doctrine applies in this case as well. If the company you work for has only 20 permanent employees, but also has 30 or more temporary workers, it is required to provide you with FMLA leave.
What Should You Do If You Are Denied FMLA Leave?
Remember, just because your employer tells you you are not eligible for FMLA leave or the company is not covered by the FMLA, does not mean it’s true. A Cincinnati FMLA lawyer at Robert A. Klingler Co., L.P.A. can help if you have been denied your FMLA rights. Don’t hesitate to contact our office if you have questions about your FMLA eligibility.