Q. What is the policy on for workers who are employed by a county facility that puts their contracts out for bids? Let’s say the workers are employed by the first successful bidder for, say, three years and then the contract is re-bid. Another company wins the bid, takes over the job and keeps the same employees. Do their hours worked carry over even though it is a different employer? I could not find a reference to this problem in the .
A. First, if the employee is actually employed by the county, there is no break in employment. The FMLA would apply, assuming the employee has worked the threshold amount (a total of 12 months and at least 1,250 hours over the previous 12 months).
Second, if the employee is employed by the first successful bidder (again, assuming the threshold is satisfied) and is hired by the second successful bidder to perform a similar task, the FMLA likely applies under the theory that the second bidder is a “successor employer.”
Successor liability applies if there is substantial continuity in the business operations and the working conditions of the employee (i.e., similarity of location, supervision, services performed, etc.).
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