[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: 29CFR825.106]



[Page 749-750]

 

                             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.  825.106  How is ``joint employment'' treated under FMLA?



    (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



[[Page 750]]



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.