Covered ERs for FMLA/CFRA?

csul

I have a question about determining a covered employer for FMLA/CFRA in California. There is a division in LA that carries its own tax ID# and employs less than 50 employees on its payroll. However, the division is connected to an out-of-state corporation that employs about 500 employees.

Is the LA division covered by FMLA/CFRA based on the corporation headcount? Or can it be considered a separate entity for FMLA/CFRA purposes due to the separate tax ID# and less than 50 EEs headcount?

Thanks very much to anyone who can help me answer these questions.

Holly Jones

Speaking for FMLA (though I believe the answer is similar for CFRA):

The answer is "could be."

I know, not helpful.

As with many of those "could be" and "it depends" and "possibly maybe" issues in federal law and regulations, it largely comes down to control. Does the 500+ employee, out-of-state entity have enough control over the LA entity to meet the "integrated employer" test (or to pass muster as a joint employer for the employees in the LA division).

Separate tax ID numbers is helpful, since it prevents us from saying "Oh, yes, those are definitely the same company/business/employer," but the tax IDs alone are not really instructive. What really matters is the entire relationship between the two divisions/business entities.

In the regulations, this comes down to an overall analysis of common management, interrelation between the operations, centralized control of labor relations, and degree of common ownership and financial control. The more those factors are present, the more likely the LA division will be considered an "integrated" part of the 500+ employee entity and a covered employer under FMLA and CFRA.

With that said, while the LA division may end up being considered a covered employer under FMLA, the individual employees at that location still might not be eligible employees for FMLA/CFRA leave if they are not located within 75 miles of worksites that employ 50 or more employees.

So it's entirely possible to have an employer be covered by FMLA (and the relevant posting requirements, etc.), but to have no employees of that company who are actually eligible for leave.