(a) The definition of "employ" for purposes of FMLA is taken from
the Fair Labor Standards Act, Sec. 3(g), 29 U.S.C. 203(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 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 September 1, 2008, subsequently dropped below 50
employees before the end of 2008 and continued to employ fewer than 50
employees in all workweeks throughout calendar year 2009, the employer
would continue to be covered throughout calendar year 2009 because it
met the coverage criteria for 20 workweeks of the preceding (i.e.,
2008) calendar year.
[73 FR 68075, Nov. 17, 2008]
