Many small employers aren’t covered by the
If you’re considering adding temp help from an outside agency to handle a workload spike, get out your calculator first. If you’re not careful, you could wind up triggering FMLA liability for everyone who works for you.
The U.S. Department of Labor’s clarify that being a so-called “joint employer” means you have to provide to those employees who qualify (those who have worked for your organization for at least one year total and at least 1,250 hours in the past year).
The regs say you can become a joint employer even if your new employees come from a temporary placement agency that pays their wages if your organization directs their work schedule and provides the supervision. To arrive at the 50-employee threshold, the DOL counts employees at both companies.
Recent case: Denise Moldenhauer worked for Tazcom, a nonprofit corporation created by the city of Pekin and the county of Tazewell to provide 911 emergency services. At no time has the nonprofit employed 50 or more workers.
Moldenhauer developed chronic pancreatitis in 1991, causing her to miss work because of acute flare-ups. By 2002, she was missing considerable work, to the point that Tazcom was concerned.
Then Moldenhauer told her boss she wanted to take FMLA leave. Tazcom said she wasn’t eligible and she filed a complaint with the DOL. The DOL issued a preliminary finding concluding that the nonprofit was a joint employer with the city and county entities that created it.
Tazcom fired Moldenhauer and she sued. The 7th Circuit Court of Appeals dismissed the case. It looked carefully at who controlled the actual work that Moldenhauer performed—that is, assignments, scheduling, hiring and firing. Because that was strictly the purview of Tazcom’s executive director, and because the nonprofit never employed more than 23 people, the court concluded the city and county were not joint employers. That was true even though those entities managed the , rented space to Tazcom and provided most of the operational funding. (Moldenhauer v. Tazewell-Pekin Consolidated Communications Center, No. 07-1118, 7th Cir., 2008)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Never mind, just a little $100 million misunderstanding
- Retire or you're fired? Prepare for age bias suit
- A growing problem: Obese workers cost Texas employers $3 billion
- Being placed on performance improvement plan isn't grounds to claim 'constructive discharge'