(a) An employer covered by FMLA is any person engaged in commerce
or in any industry or activity affecting commerce, who employs 50 or
more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year. Employers covered
by FMLA also include any person acting, directly or indirectly, in the
interest of a covered employer to any of the employees of the employer,
any successor in interest of a covered employer, and any public agency.
Public agencies are covered employers without regard to the number of
employees employed. Public as well as private elementary and secondary
schools are also covered employers without regard to the number of
employees employed. (See Sec. 825.600.)
(b) The terms ``commerce'' and ``industry affecting commerce'' are
defined in accordance with section 501(1) and (3) of the Labor
Management Relations Act of 1947 (LMRA) (29 U.S.C. 142 (1) and (3)), as
set forth in the definitions at Sec. 825.800 of this part. For
purposes of the FMLA, employers who meet the 50-employee coverage test
are deemed to be engaged in commerce or in an industry or activity
affecting commerce.
(c) Normally the legal entity which employs the employee is the
employer under FMLA. Applying this principle, a corporation is a single
employer rather than its separate establishments or divisions.
(1) Where one corporation has an ownership interest in another
corporation, it is a separate employer unless it meets the ``joint
employment'' test discussed in Sec. 825.106, or the ``integrated
employer'' test contained in paragraph (c)(2) of this section.
(2) Separate entities will be deemed to be parts of a single
employer for purposes of FMLA if they meet the ``integrated employer''
test. Where this test is met, the employees of all entities making up
the integrated employer will be counted in determining employer
coverage and employee eligibility. A determination of whether or not
separate entities are an integrated employer is not determined by the
application of any single criterion, but rather the entire relationship
is to be reviewed in its totality. Factors considered in determining
whether two or more entities are an integrated employer include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control.
(d) An ``employer'' includes any person who acts directly or
indirectly in the interest of an employer to any of the employer's
employees. The definition of ``employer'' in section 3(d) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any
person acting directly or indirectly in the interest of an employer in
relation to an employee. As under the FLSA, individuals such as
corporate officers ``acting in the interest of an employer'' are
individually liable for any violations of the requirements of FMLA.
[73 FR 68075, Nov. 17, 2008]
