FMLA for Contractors

jessicah · January 2004

I work for a firm that employees roughly 35 contractors who are placed at different companies doing upper level IT work. Most conracts run from about 3 - 9 monhts, and we have some contractors who have worked for us for a long time b/c we have been able to re-deploy them over and over. Because we belong to a PEO who employs over 50 people, we are required by law to offer FMLA.

My question is this; if an employee is deemed eligible for FMLA and their contract ends while they are out on leave, would that be considered the same thing as a lay off and therefore can we term the person? Of course we work hard to find each contractor a new positon as soon as their last contract ends, but it doesn't seem feasible to guarantee reinstatement since we have no idea what the market and need will be like upon their return. Please advise, and thanks in advance.

Whatever · January 2004

I am confused. Are they independent contractors or are they employees?

jessicah · January 2004

WE have both 1099 and W2 employees. Mostly W2.

SMace · January 2004

It sounds like these contractors are employees. Since they work under a finite contract it would be logical to conclude that they would not have to be re-instated to a non-existant contract. They would have to be re-instated if a new contract is started for which they would be eligible. We can never rely on logic, however. This is breaking new ground for me, as I've never come acroos or heard of a situation like this. I strongly advise you to contact your attorney or find one.

jessicah · January 2004

It is definitely unusual - I have now read then entire text of the FMLA and cannot find the answer! I think contacting our attorney to get advice is probably the best idea.

SMace · January 2004

The first question you and your attorney need to answer is if they are contractors or employees. Be very careful if you classify them as contractors. You must follow the letter of the law. Good luck and let us know how you are going to handle it.

Don D · January 2004

It would seem to me that if the employee is attached to the firm who farms him out for a variety of contracts, that would be the deciding factor. Is he employed or is he not? It seems not relevant whether or not he has a job assignment ongoing.....Is he still carried as an employee on the books of the employer who employs him? I doubt that an employer can consider an employee unemployed in this arrangement and thereby avoid FMLA responsibilities. Interesting. I defer to those who know.

SMace · January 2004

Based on her first post it sounds like once an ee's contract ends they are laid off. If that is the case their job assignment seems very relevant to me. I wouldn't think that FMLA would require you to be re-assigned to a position that is not existent. Hopefully jessica will keep us advised how it turns out.

jessicah · January 2004

Thanks to all of you who took the time to respond and help! I did finally find an answer after consulting several sources and reading the full text of the FMLA. If an employee was hired for a specific term or only to perform work on a discrete project, the employer has no obligation to restore the employee if the employment term or project is over and the employer would not otherwise have continued to employ the employee. I reviewed with a lawyer and found that unless we have occassion where an employee was going to be kept "on the bench" after the term of his project, we would not be responsible for restoration of employment. The person would not be termed due to his taking of FMLA leave, but due to the conclusion of the project he was working on, an acceptable reason.

In seemed counterintuitive to restore someone to a job that was no longer available, so I was happy with this finding. Now of course since our only asset is our employee pool, we will always do everything we can to help our employees out and to place them on new projects upon return from any type of leave. I was relieved however to find out that if the market just took a nose dive and there was no project available that we would not be legally liable.

FMLA for Contractors

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