(a) Where two or more businesses exercise some control over the work
or working conditions of the employee, the businesses may be joint
employers under FMLA. Joint employers may be separate and distinct
entities with separate owners, managers and facilities. Where the
employee performs work which simultaneously benefits two or more
employers, or works for two or more employers at different times during
the workweek, a joint employment relationship generally will be
considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an
employee's services or to interchange employees;
(2) Where one employer acts directly or indirectly in the interest
of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with
respect to the employee's employment and may be deemed to share control
of the employee, directly or indirectly, because one employer controls,
is controlled by, or is under common control with the other employer.
(b) A determination of whether or not a joint employment
relationship exists is not determined by the application of any single
criterion, but rather the entire relationship is to be viewed in its
totality. For example, joint employment will ordinarily be found to
exist when a temporary or leasing agency supplies employees to a second
employer.
(c) In joint employment relationships, only the primary employer is
responsible for giving required notices to its employees, providing FMLA
leave, and maintenance of health benefits. Factors considered in
determining which is the ``primary'' employer include authority/
responsibility to hire and fire, assign/place the employee, make
payroll, and provide employment benefits. For employees of temporary
help or leasing agencies, for example, the placement agency most
commonly would be the primary employer.
(d) Employees jointly employed by two employers must be counted by
both employers, whether or not maintained on one of the employer's
payroll, in determining employer coverage and employee eligibility. For
example, an employer who jointly employs 15 workers from a leasing or
temporary help agency and 40 permanent workers is covered by FMLA. An
employee on leave who is working for a secondary employer is considered
employed by the secondary employer, and must be counted for coverage and
eligibility purposes, as long as the employer has a reasonable
expectation that that employee will return to employment with that
employer.
(e) Job restoration is the primary responsibility of the primary
employer. The secondary employer is responsible for accepting the
employee returning from FMLA leave in place of the replacement employee
if the secondary employer continues to utilize an employee from the
temporary or leasing agency, and the agency chooses to place the
employee with the secondary employer. A secondary employer is also
responsible for compliance with the prohibited acts provisions with
respect to its temporary/leased employees, whether or not the secondary
employer is covered by FMLA (see Sec. 825.220(a)). The prohibited acts
include prohibitions against interfering with an employee's attempt to
exercise rights under the Act, or discharging or discriminating against
an employee for opposing a practice which is unlawful under FMLA. A
covered secondary employer will be responsible for compliance with all
the provisions of the FMLA with respect to its regular, permanent
workforce.
