Employment News: FMLA Tip
By: Anne-Marie L. Storey, Esq.
In recognition of the 20th anniversary of the federal FMLA, here is
another (perhaps unwanted) FMLA tip.
As you know, in order to be eligible for leave under the federal FMLA an employee
must have worked for a covered employer for 12 months and for 1,250
hours. You also know that the 12 months does not need to be
consecutive time and in fact, employment within seven years is counted unless the break in
service is due to an employee’s fulfillment of military obligations or governed
by a collective bargaining agreement or other written agreement.
The employee does have to have worked the 1,250 hours within the 12-month period
prior to the start of leave.
How are those requirements impacted if an employee first works for an employer through a
temporary agency and is then hired by that employer directly? Does the
time spent working as a temporary employee count toward the eligibility
thresholds? Unfortunately, according to the Department of Labor’s
regulations interpreting the FMLA, the time worked as a temporary employee does count toward the eligibility
requirements because the DOL considers the employee to be under joint
employment during the assignment. This conclusion has been confirmed by
at least one court decision and a DOL opinion letter.
So, if you are an employer utilizing temporary employees and you then hire any of those individuals
directly, be aware of this interpretation of the federal FMLA if and when a
request for leave is made.
These materials have been prepared by Rudman Winchell
for educational purposes only. They should not be considered legal
advice. The transmission of this information to you is not intended to create a
lawyer-client relationship. Readers should not act upon this information
without seeking professional counsel. You should not send any
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