Counting the 1 year

HCCADC

Background-- I have an employee who is seasonal, she works from Aug to May and then collects Unemployment for the months of June and July. If she comes back in Aug and in Sept wants to go on FMLA, and she has been an employee of ours for about 4 years (excluding the layoff months), would she meet the "been an employee for 1 year" standard for FMLA? We have a rolling calendar year (when an employee needs FMLA, we count back 12 months from there) so if we do this, she actually was not employed for 2 months, although she was expected to return in August. In my thoughts, she would be eligible, but I have another HR person telling me that no, she does not meet the 1 year employee standard.

LivindonSouth

Indeed she does. The Act does not say she must have worked in each of 12 months in the one year period. That's where the 1250 hour factor comes in. Just my opinion.

HCCADC

Yes, that is exactly what I thought too. She called DOL and asked and they told her it is years of service, not just the 12 months. Thanks for your reply!

marc

The time does not have to be consecutive or continuous. All time worked for the ER counts.

Theoretically, you could have worked a couple of months 5 years ago and completed the remaining months of the 12 at any time since and be eligible for the leave.

LivindonSouth

Another wrinkle; I'm also told that time working at your site as a temp also counts if the ee then becomes a regular employee. Not sure what that's all about.

pork1

[font size="1" color="#FF0000"]LAST EDITED ON 06-23-05 AT 01:25PM (CST)[/font][br][br]DON: Several companies ago, we contracted with a "personnel company" out of Jackson, MS to manage our employment and training employees for the first 90 days of their history with us. On the 91 st day, depending on their ability to learn and grow to become a full-time trained employee, we would roll them into full-time regular employment, and we would pick-up at that point all benefit responsibilities. Until the 91st day of working on our production floor the ee's company was the Temporary Staffing Agency! The temp staffing agency took care of W/C, unemployment, payroll, and etc. I believe that is what this is all about.

This program worked well until faced with a union drive and that is when the "___hit the fan" and the NLRB allowed the staffing personnel employees to be a part of the "managed group of labor to be representative". The company defeated the drive, but the personnel staffing company was fired.

PORK

POPEYE

The original post never mentioned WC Unemployment nor payroll. It specifically asked about FMLA. Don is absolutely correct. Section 825.106 (b) states ".....For example, joint employment will ordinarily be found to exist when a temorary or leasing agency supplies employees to a second employer."

This section of the REGS goes on to explain that temporary employees from a service must be treated with all the provisions of FMLA as the secondary employer's permanent workforce.

LivindonSouth

In regard to PorK's post, it is a fact that temps also have the right to vote in NLRB organization efforts. It matters not that they are not 'employees'. Anyone working for the potential bargaining unit in a capacity that might be covered by a collective bargaining agreement, should one be ratified, has a right to vote. They also have the right to organize, thus they can organize, stir up the initial stink, recruit others and petition the NLRB. Run their ass off at the first notice of this type of stuff. (If that advice is too direct or unfriendly for the left coast I am sorry).

WO

Livindonsouth, you mention "time working as a temp also counts if the ee then becomes a regular employee. Not sure what that's all about."

I recently implemented FMLA for a young employee whose wife had just given birth. He was newly hired into a regular union represented position about 4 months. He had worked the previous 3 summers for us as a college student. His 12 months were met through inclusion of the temp employment, his 1250 hours were also met.

His supervisor was real mad at me for implementing FMLA for this employee who had not been a regular employee for 12 months and still is.

That's what it's all about.

LivindonSouth

You did the correct thing. Supervisors' knowledge of FMLA typically ranges from dangerous to surface. I always advocate that supervisors are not supposed to be remotely involved in the actual administration or decision making involving FMLA. They should be clockwatchers and reporters and otherwise remain silent.

POPEYE

If I knew how to put the little smiley emoticon with the clapping hands here I would. This ACT was written for situations like you have described. Unfortunately there are a few that try to take advantage of it, and also a few physicians that will write anything the EE tells them to write, and that is what makes it so difficult to administer.