Temp agency employees and the FMLA

Q. Must an employer using the services of a temporary agency comply with the FMLA for its temporary or leased employees?

A . When two or more companies exercise some control over the work or working conditions of an employee, they may be “joint employers” under the FMLA. Joint employers ordinarily will be found to exist when a temporary or leasing agency supplies employees to a second employer.

In joint employment relationships, only the “primary” employer is responsible for giving required notices to its employees, providing FMLA leave and maintaining health benefits. To determine the primary employer, consider which employer has the authority or responsibility to hire and fire the employee, make payroll and provide employment benefits.

The primary employer of temporary or leased employees, for example, is most commonly the agency. Thus, the agency would be responsible for providing FMLA leave to its temporary employees.