[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.105]



[Page 748-749]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

Subpart A_What is the Family and Medical Leave Act, and to Whom Does It 

                                 Apply?

 

Sec.  825.105  In determining whether an employer is covered by FMLA, what does 

it mean to employ 50 or more employees for each working day during each of 20 

or more calendar workweeks in the current or preceding calendar year?



    (a) The definition of ``employ'' for purposes of FMLA is taken from 

the Fair Labor Standards Act, Sec.  3(g). The courts have made it clear 

that the employment relationship under the FLSA is broader than the 

traditional common law concept of master and servant. The difference 

between the employment relationship under the FLSA and that under the 

common law arises from the fact that the term ``employ'' as defined in 

the Act includes ``to suffer or permit to work''. The courts have 

indicated that, while ``to permit'' requires a more positive action than 

``to suffer'', both terms imply much less positive action than required 

by the common law. Mere knowledge by an employer of work done for the 

employer by another is sufficient to create the employment relationship 

under the Act. The courts have said that there is no definition that 

solves all problems as to the limitations of the employer-employee 

relationship under the Act; and that determination of the relation 

cannot be based on ``isolated factors'' or upon a single characteristic 

or ``technical concepts'', but depends ``upon the circumstances of the 

whole activity'' including the underlying ``economic reality.'' In 

general an employee, as distinguished from an independent contractor who 

is engaged in a business of his/her own, is one who ``follows the usual 

path of an employee'' and is dependent on the business which he/she 

serves.

    (b) Any employee whose name appears on the employer's payroll will 

be considered employed each working day of the calendar week, and must 

be counted whether or not any compensation is received for the week. 

However, the FMLA applies only to employees



[[Page 749]]



who are employed within any State of the United States, the District of 

Columbia or any Territory or possession of the United States. Employees 

who are employed outside these areas are not counted for purposes of 

determining employer coverage or employee eligibility.

    (c) Employees on paid or unpaid leave, including FMLA leave, leaves 

of absence, disciplinary suspension, etc., are counted as long as the 

employer has a reasonable expectation that the employee will later 

return to active employment. If there is no employer/employee 

relationship (as when an employee is laid off, whether temporarily or 

permanently) such individual is not counted. Part-time employees, like 

full-time employees, are considered to be employed each working day of 

the calendar week, as long as they are maintained on the payroll.

    (d) An employee who does not begin to work for an employer until 

after the first working day of a calendar week, or who terminates 

employment before the last working day of a calendar week, is not 

considered employed on each working day of that calendar week.

    (e) A private employer is covered if it maintained 50 or more 

employees on the payroll during 20 or more calendar workweeks (not 

necessarily consecutive workweeks) in either the current or the 

preceding calendar year.

    (f) Once a private employer meets the 50 employees/20 workweeks 

threshold, the employer remains covered until it reaches a future point 

where it no longer has employed 50 employees for 20 (nonconsecutive) 

workweeks in the current and preceding calendar year. For example, if an 

employer who met the 50 employees/20 workweeks test in the calendar year 

as of August 5, 1993, subsequently dropped below 50 employees before the 

end of 1993 and continued to employ fewer than 50 employees in all 

workweeks throughout calendar year 1994, the employer would continue to 

be covered throughout calendar year 1994 because it met the coverage 

criteria for 20 workweeks of the preceding (i.e., 1993) calendar year.