Best Ohio FMLA Attorney Answer: If I work for a temporary agency, who is my employer for the purposes of the FMLA? Can I combine time I was technically employed by a staffing agency with time worked after hired permanently to meet the FMLA’s 12-month service requirement? Can I request FMLA leave if I have been at my job for a year and a half but have only been a permanent employee for the last six months? How do I get medical leave if I work as a temp?
As our employment law attorneys have frequently blogged about, The Family Medical and Leave Act of 1993 (“FMLA”) entitles eligible employees to take up to twelve weeks of unpaid, job-protected leave in order to care for qualified medical and family reasons. (See Can I Sue My Boss For Interfering With My FMLA Leave? I Need A Lawyer!; Can My Boss Give Me FMLA Leave And Then Fire Me For Being Not Eligible? Best Lawyer Response!; What Should I Do If I Was Harassed For Using FMLA? I Need A Lawyer! Can I Be Denied FMLA Because I Am A Key Employee? I Need A Lawyer!; and Best Attorney Answers: Can I be forced to take leave under the Family Medical Leave Act?)
An eligible employee may take FMLA leave to care for a new child, to care for a seriously ill family member, or to recover from the employees own serious illness. In order to be eligible for FMLA leave, an employee must have worked for her employer for at least twelve months, whether consecutive or not, and have worked at least 1,250 hours for that employer in the trailing twelve months. (see Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?; and Are All Employees Eligible For FMLA Leave? Best Employment Lawyer Reply!) Whether an employee has worked for an employer for twelve total months and whether that employee has worked the requisite number of hours over the past twelve months is generally an easy question to answer. Our employment lawyers can look at payroll records and easily determine if the employee has met those threshold requirements.
But, what about an employee who was initially hired to work at an employer’s facility by a temporary agency and later hired by that employer on a permanent basis? If that employee works at the employer’s facility, on a temporary basis and paid by the temporary agency, for eight months, is then hired as a permanent employee and works another four months, has she worked twelve qualifying months? The Department of Labor (“DOL”)and numerous courts say yes!
In Miller v. Defiance Metal Products, Inc., Judge James G. Carr of the United States District Court Northern District of Ohio held that where an employee is initially hired through a temporary agency and subsequently brought on full-time by an employer, the clock for twelve months of qualifying service for FMLA eligibility starts ticking on the date the employee begins working at the employer’s facility. In Miller, the employee was initially hired by a temporary agency to work at Defiance Metal and was paid and “employed” by the temporary agency for approximately eight months. The employee was then hired on a permanent basis by the Defiance Metal and continued working there for another eight months. When the employee attempted to request FMLA leave, Defiance Metal informed her that she was ineligible, as she had not yet been employed by them for the required twelve months.
Looking to FMLA regulations, specifically to 29 U.S.C. § 825.106, which addresses joint employers, the court noted that employees jointly employed by two or more employers must be counted by both employers for FMLA coverage and eligibility purposes. Thus, the employee in Miller, because she had accrued a total of sixteen months, was an eligible employee under the FMLA. Judge Carr astutely held:
The history of FMLA indicates that Congress intended the definitions of employ and employee to be broadly inclusive. S.Rep. No. 103-3 at 25 (1993). Thus, FMLA incorporates the definition of these terms from the Fair Labor Standards Act (FLSA). 29 U.S.C. § 2611(3). Under FLSA, the term employ is defined as “to suffer or permit” to work. 29 U.S.C. § 203. Furthermore, FLSA was not intended to exclude temporary workers. Mitchell v. Feinberg, 123 F.Supp. 899, 903 (E.D.N.Y.1954).
Plaintiff … was permitted to work at defendant’s Defiance facility for a twelve-month period of time. The reclassification of plaintiff from temporary to permanent employee does not alter that time frame. Accordingly, plaintiff was “employed” by defendant, as that term is defined under FMLA, for the requisite twelve-month interval and, therefore, is an eligible employee.
The decision in Miller solidified the already stated position of the Department of Labor. In a 1994 Opinion Letter, the DOL addressed facts similar to those at issue in Miller. The DOL took the position that “A temporary help agency and the employer are considered joint employers for purposes of determining employer coverage and employee eligibility for purposes of FMLA. (See Regulations, 29 CFR Part 825.106(d).) Consequently, the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests.”
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.
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