Cameron had been a temp employee for the company for well over a year before he was hired on as a regular employee. Two months later, he informed Rachel, his supervisor, that he was going to be a first-time father and would likely want to take some time off for the birth. He expected the leave to begin in about four months.
Rachel was somewhat familiar with the FMLA, but wasn’t sure how it applied to temporary employees, so she wasn’t sure Cameron would be eligible for FMLA leave. Rachel decided to ask Ananya, the company’s HR manager. Ananya thought for a bit, and informed Rachel that Cameron’s time spent as a temp employee would count toward his FMLA eligibility.
Many employers turn to temporary employees for a variety of reasons, including special projects, as seasonal help, to help in a tight employment market when regular employees are a bit scarce, to avoid hiring regular employees in an economic downturn, and so on. Temporary employees are also often offered regular positions at a company. In some industries, having temporary employees is common, while some organizations prefer to hire regular employees who began their career with the company as a temporary employee.
Such situations can give rise to issues involving how to determine whether such employees meet the FMLA eligibility criteria of working at least 12 months for the company and working at least 1,250 hours in the previous 12 months.
In situations involving temporary employees, employers and the temporary staffing agency are considered joint employers. As such, the time that an employee was employed by a temporary help agency but working at a host/client employer would be counted towards the eligibility criteria.
Joint employers may be separate and distinct entities with separate owners, managers, and facilities. Employees jointly employed by two employers — as are temporary employees — must be counted by both employers in determining employer coverage and employee eligibility for leave. It does not matter whether or not an employee is on only one of the employer’s payroll.
Therefore, returning to the opening scenario, since Cameron’s time spent as a temporary employee (over a year) would count toward his FMLA eligibility, he would have worked for the company more than 12 months. If he worked at least 1,250 hours in the 12 months at the time leave is to begin, and works at a location with at least 50 company employees within 75 miles, he would be entitled to FMLA leave for the birth of his child.