Using a Temp Agency May Not Excuse Your Business’s Obligations Under the Family and Medical Leave Act
A recent federal appeals court decision is a wake-up call for businesses relying on temporary employee leasing agencies to comply with the Family and Medical Leave Act (“FMLA”). Under FMLA regulations, a business using temps will ordinarily be found to be a joint employer with the agency employing the temps. While the temp agency obviously has FMLA obligations to the employees that it leases, it is not widely realized that the business using the temps, the so-called “secondary employer,” also may have FMLA obligations to the leased employees.
The typical situation arises when a temp employee leaves the secondary employer to go on FMLA leave. If the secondary employer calls upon the leasing agency to send a replacement temp, the secondary employer may be required to accept the original temp back when that person returns from FMLA leave.
This principle was demonstrated in a recent Sixth Circuit case, in which an automotive R&D firm replaced a leased IT temp when she left to go on leave for a respiratory condition. When the IT temp sought to return to work at the R&D firm, the leasing agency informed her that she had been replaced with another leased employee and that she would not be sent back to work at the R&D firm. The IT temp sued not only the leasing agency, but also sued the R&D firm. The court of appeals held that the leasing agency – her primary employer – had a duty to provide the IT temp the same or similar employment upon her return to work. The court also held that the R&D firm – her secondary employer – could be liable for interfering with the IT temp’s protected FMLA leave by not agreeing to her reinstatement.
If you have questions about the FMLA or obligations your business may have to its temporary or leased employees, please contact David Peck or any of the lawyers in Taft’s labor and employment department.
April 29, 2008
- If a temp approached you for medical leave would you leave it to the temp agency to handle?
- Does your business rely on its temp agency to comply with family and medical leave laws?
A recent federal appeals court decision is a wake-up call for businesses relying on temporary employee leasing agencies to comply with the Family and Medical Leave Act (“FMLA”). Under FMLA regulations, a business using temps will ordinarily be found to be a joint employer with the agency employing the temps. While the temp agency obviously has FMLA obligations to the employees that it leases, it is not widely realized that the business using the temps, the so-called “secondary employer,” also may have FMLA obligations to the leased employees.
The typical situation arises when a temp employee leaves the secondary employer to go on FMLA leave. If the secondary employer calls upon the leasing agency to send a replacement temp, the secondary employer may be required to accept the original temp back when that person returns from FMLA leave.
This principle was demonstrated in a recent Sixth Circuit case, in which an automotive R&D firm replaced a leased IT temp when she left to go on leave for a respiratory condition. When the IT temp sought to return to work at the R&D firm, the leasing agency informed her that she had been replaced with another leased employee and that she would not be sent back to work at the R&D firm. The IT temp sued not only the leasing agency, but also sued the R&D firm. The court of appeals held that the leasing agency – her primary employer – had a duty to provide the IT temp the same or similar employment upon her return to work. The court also held that the R&D firm – her secondary employer – could be liable for interfering with the IT temp’s protected FMLA leave by not agreeing to her reinstatement.
If you have questions about the FMLA or obligations your business may have to its temporary or leased employees, please contact David Peck or any of the lawyers in Taft’s labor and employment department.
