family medical leave
graymond
1 Post
Are there any court cases or admin decisions on what constitute an "employee" for purposes of determining whether a company has 50 employees? For example, in a privately held company would a mojor shareholder who is also an officer of the company be considered an employee?
Comments
The initial criteria for an employer to be subject to Family Leave law is the threshold of employing 50 or more employees on each working day during the preceding 20 or more calendar work weeks in the current or preceding year. (Workweeks need not be consecutive work weeks.) This threshold applies as of the time an employee requests a leave of absence. All the following “employees” must be counted to determine whether or not an employer meets this initial threshold.
"Absent" Employees
Any employees on paid or unpaid leaves of absences must be counted in determining employer size. Similarly, employees on disciplinary suspension must be counted.
Part-Time Employee
Part-time employees are counted as if they work every day during a workweek (whether they actually do or not). However, in weeks in which a part-time employee commences employment or ceases employment, the actual days are counted.
Shared/Leased Employees
Both joint employers who share or interchange employees must count shared employees when determining whether they are subject to this law. The primary employer is the entity with the authority to hire/terminate, and who has the responsibility to assign and place employees, provide benefits and is responsible for payroll duties. In this situation “the primary employer” would also be the entity required to provide the actual leave, maintain benefits and restore job positions.
Lay-Off Status
Employees on “lay-off” status need not be included in counting the number of employees to determine employee size.
A corporation that is a single employer, whose individual divisions and locations are not treated separately, must aggregate employees in determining Family Leave obligation. Separate entities are considered one integrated employer and their employees are counted together if they maintain:
1. Common management;
2. Interrelation between operations;
3. Centralized control of labor relations; and
4. Common ownership and financial control (the "degree" of ownership and financial control can be the defining factor).
In addition, the law uses the “Single Employee Test” under the National Labor Relations Act when determining whether an employer has common ownership.
As to a major shareholder - unless this person is an employee as defined by law (which would be someone reported on the Quarterly Wage Report) I don't see that this person would be counted.
Hope this helps...