Are you an FMLA Covered Employer?

A good starting point when it comes to the Family and Medical Leave Act (FMLA) is determining whether or not you are a “covered” employer.  A covered employer is typically a business with more than 50 staff members.  This applies to private sector employers, public agencies or schools. Seems fairly straightforward- right? Wrong. The grey area creeps in when you're below that threshold - or when you believe yourself to be. If you are a small company with less than 50 employees you may understandably assume that you are not covered- it could turn out to be a costly mistake.

First, let’s look at employees who must be counted to get your company over the threshold and into “covered” status:

  • Any employee who works in the United States, or any territory or possession of the United States
  • Any employee whose name appears on payroll records, whether or not any compensation is received for the workweek
  • Any employee on paid or unpaid leave (including FMLA leave, leaves of absences, disciplinary suspension, etc.), as long as there is a reasonable expectation the employee will return to active employment
  • Employees of foreign firms operating in the United States
  • Part-time, temporary, seasonal, and full-time employees

Again, nothing there seems overly complicated. You’re either over or under the threshold based on employees who meet the above criteria. However don’t rest on your laurels just yet. The difficulty begins when you consider integrated, joint and successor employers.

Integrated Employers
A corporation is a single employer under the FMLA rather than its separate establishments or divisions. Additionally, separate businesses could be parts of a single employer for FMLA purposes if they are an integrated employer. Factors to be considered in determining if your business is part of an integrated employer include:

  • Common management
  • Interrelation between operations
  • Centralized control of labor relations
  • Degree of common ownership or financial control

For purposes of determining employer coverage under the FMLA, the employees of all entities making up the integrated employer must be counted.

Joint Employers
Where two or more businesses exercise some control over the work or working conditions of an employee, such as with a temporary employment agency, the businesses may be joint employers under the FMLA.

Successor Employers
An employer may be a covered employer if it takes over the business operations of a covered employer. Some of the factors to be considered in determining if an employer is a successor include:

  • Continuing the same business operations and providing similar products or services.
  • Providing similar jobs and working conditions.
  • Continuing to use the same work force and supervisor structure.
  • Using the same location and similar equipment and production methods.

Spotlight Case
If you’re not convinced that any of these exceptions could apply to your business then don’t forget the manager at a Massachusetts pizza store who filed an FMLA lawsuit.  The employer stated that the law didn’t apply to his store as he employed less than 50 people. However, his store was linked to another two in the same franchise which pushed them over the 50 employee limit.  The court deemed that there was enough of a connection between the three stores to make them an integrated employer.

If you are in any doubt at all over your FMLA status or just want more information regarding FMLA in general get in touch with Lumity to learn more.


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