Temp Time Counts?
HRanna
40 Posts
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?
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?
Comments
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.
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.
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.
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.
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]
I'll have to try that one the next time I write a policy or procedure.