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Temp Employee May Trigger FMLA Rights

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in Employment Law,FMLA Guidelines,Human Resources

Q. Do employees paid through a temporary agency count toward the 50-employee eligibility number for the Family and Medical Leave Act? —M.S., New Jersey

A. Quite possibly. When a company hires a temp through an agency, the company and agency may be considered joint employers. Whether a joint employment relationship actually exists must be determined on a case-by-case basis. Workers who are “jointly employed” must be counted as employees of both employers for purposes of the FMLA and other employment laws.

However, only the primary employer is required to comply with the notice provisions of the FMLA. Moreover, while job restoration is the main duty of the primary employer, a secondary employer may be required to accept an employee returning from FMLA leave.

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