Temp Time Counts?

HRanna

We are a manufacturing facility, and use a staffing ("temporary")agency to recruit new employees. The new people stay on the agency's payroll for a minimum of 60 calendar days, and are then eligible to be hired by us.

I recently heard that we sould, for FMLA eligibility determination, count the 60+ days with the agency toward the required one year of service, and count the hours they work as temps toward the 1250 hour requirement.

Has anyone heard of this?

mushroomHR

Yes, the time a temporary employee (although they are an agency temporary employee) has spent working in your facility should be counted towards their required service for FML purposes. You would consider them just as you would an employee who had been on your payroll.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 05-07-04 AT 07:31AM (CST)[/font][br][br]Convince me this is true.

29 CFR 825.106(c) seems to hint at just the opposite. "In joint employment relationships, only the primary employer is responsible for giving required notices to its employees, providing FMLA leave, and maintenance of health benefits. For employees of temporary help or leasing agencies, for example, the placement agency most commonly would be the primary employer." I may be overlooking it, but I don't see that the Act says temps have their temp-time counted towards total employment time if they go on the company payroll.

deniseE

I agree with Don that the Act does not require that temp time be counted....but we bring ee's in as temps and if they work out, hire them as full ee's. We do count the temp time for FMLA purposes.

Betty I_O

Convince me this is true, too! We just had a similar situation in one of our affiliates; our local Employers' Association labor attorney advised us that we did not have to count the temp time toward FMLA.

mushroomHR

Refer to "Miller v. Defiance Metal Products, Inc." as well as 29CFR 825.106 (d). A employer and a temporary agency are "joint employers" in determining the time an employee has worked to qualify for FML--unless I'm interpreting this incorrectly. However, two seminars I have attended have told us that the time someone spends as a temporary worker working for a temporary agency in our facility counts towards their FML eligibility. Please correct me if I am wrong. Thank you.

Don D

106(d) primarily is addressing the determination of employer coverage by stating that on site temps count toward the host employer's 50 employee floor-level. It does mention eligibility, but only as it relates to an employee on leave from one employer, now working for another. The Act makes no specific mention of a temp's time counting toward the 1250 hours if later converting to the host employer's payroll.

If I were to be confronted with this particular issue tomorrow, I would NOT consider the time they worked here as a temp. I need a bit more convincing that the Act intends and states that.

mushroomHR

Do a Google search for "Miller v. Defiance Metal Products, Inc." and you will see that I am correct. Use this link: [url]http://www.twc.state.tx.us/news/efte/j_hours_worked_and_the_fmla.html[/url]

They state that the time the employee was employed by the temporary help agency would be counted towards the eligibility test. This ruling was supported in a 1997 court ruling, Miller v. Defiance Metal Products, Inc. The court concluded that reclassification of an employee from temporary to "permanent" does not alter the FMLA time frame used in determining whether an employee has worked at least twelve months, and that the time frame for a temporary help firm employee who is later hired by the client employer begins to run from the date that the employee is first ASSIGNED to work at the client's facility.

Don D

Velly intah-resting, Shroom. Thanks for the link.

HRanna

Thank you to everyone who responded.

My local Empliyers Association legal team has advised me as Mushroom indicated -- a temp agency and their client (me!) may be considered Joint Employers based on the nature and degree of control of the workers.

Isn't that just wonderful news.

POPEYE

Just as a follow-up, in the May edition of HRinsight there is a quiz that asks this very question and the answer that is given is TRUE. Maybe one of our M Lee Smith partners can cite the REG from where this answer was ascertained.

acslayer

Popeye,

In the FMLA quiz in the May edition of HR Insight, we were relying on the FMLA regulations, 29 C.F.R. 825.106(a)-(d). This section of the regulations explains that for purposes of the FMLA, employers who lease employees from temporary agencies are joint employers. Section 825.106(d) states: "employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employer's payroll, in determining employer coverage and [b]employee eligibility[/b]."

Keep in mind that the history of the FMLA indicates that Congress intended the definitions of employ and employee to be [b]broadly inclusive.[/b] S.Rep. No. 103-3 at 25 (1993).

Courts have found that although the regulations do not specifically state that the time of joint employment will count toward eligibility after the joint employment relationship is terminated, one of the purposes for the joint employment provision is the protection of the temporary employee. Therefore, by refusing to count the time a former temporary employee was assigned to a now permanent employer would be ignoring the intent of both the FMLA and the regulations.

Alan King
HR Insight Managing Editor
[email]aking@mleesmith.com[/email]

POPEYE

Thank you! I love the term "Broadly Inclusive".
I'll have to try that one the next time I write a policy or procedure.

Don D

But isn't your conclusion as to the "intent of congress" based purely on your interpretation and speculation as to what is said and what you feel was intended? Is it also your interpretation that these temps who shuffle around working a week here and there for nine different employers will have a week toward their 12 months at any of them which might later employ him?

Ethel

We bring in some levels of employees in a "Temp to Regular" employment basis from Employment Agencies. We received a request for FMLA leave from an employee who had only been on our payroll for approx 9 and 3/4 months. I did not think she qualified, but after checking with our labor attorney - Surprise!!! We had to count the three months she was on the agency's payroll because we were considered co-employers.