Temps and FMLA/ADA

qsausagelm · November 2004

We lease temporary workers and some of them have been here well over a year. We (the agency and us) hold joint employer status. In the past, if one would leave for whatever reason, we would replace them with another temp and not hold the position available for them.

Are we subject to the provisions of FMLA and ADA for temporary workers?

Thanks

SMace · November 2004

If they've worked for you over a year, they ain't temporoary. Not having to deal with this, I'm not sure of the specific requirements of "joint-employers". I believe that courts made some significant clarifications regarding temporary status and benefits. They were reacting to employers taking advantage of the "temporary" label by denying benefits. In reality these workers were no more temporary than you or me. Just my thoughts. Hopefully someone with specific knowledge will weigh in.

Don D · November 2004

I have specific knowledge and will weigh in. You have zero FMLA obligation to/for a temp who works for you, regardless of the length of the assignment. We often hire from the ranks of our temps and we have temps who have been here for a year. Maybe they'll get hired, maybe not. Your use of the word 'lease' is bothersome. Out temps are not leased. We merely tell the agency we want a temp for an undetermined period of time and we pay $12 for them and the agency pays them $8 plus covers all the stuff we avoid covering.

Nor do you have work-comp responsibility should a temp be injured. The agency does.

mushroomHR · November 2004

Don is absolutely right in his response. You have no obligation for FML or workers' comp.

POPEYE · November 2004

I agree with this caveat. If at some time in the future you decided to transition this EE to your payroll, the time worked at your facility counts when you calculate their FMLA eligibility time with your company.

Don D · November 2004

Aha! Very good point.

LindaS · November 2004

I have to respectfully disagree with the previous posts. I just returned from an FMLA/ADA seminar and in the paperwork I received it states that in joint employer situations, both employers must be counted in determining employer coverage and employee eligibility.

It goes on to state that the primary employer (the temp agency) has the responsibility to provide the notice requirements, etc. the secondary employer must comply with the "prohibited acts" under the FMLA.

It was explained that if an EE comes to you from a temp. agency and, after one week on the job, notifies you that they need time off that would qualify under FMLA, you are obligated to provide that leave (assuming they have met the eligibility requirements through the temp. agency) and reinstate them to their former position upon return from the leave, as long as taht position is still available.

Now I'm sure some will disagree and this was the first time I had ever heard that and this is one of the various issues I am going to ask our attorney to investigate but I wanted to throw this information into the ring and see what others have to say.

POPEYE · November 2004

Check out section 825.106 (e)

Paraphrased---

Job restoration is the primary responsibility of the primary (staffing company) employer. The secondary (client company) is responsible for accepting the employee returning from leave IF the agency chooses to place the employee with the secondary employer.

With this verbiage and my past experiences with this, if the client company is still using staffing employees and the staffing company wants to place the employee back into the position then yes, it is the client's responsibility to take them back. I would find it very odd that a staffing company would "fill" a position for someone out on leave and then want to remove the replacement and bring back the other employee. That does not make good sense from a morale aspect.

qsausagelm · November 2004

We have always treated these workers as if they are not eligible. If they are unable to perform the assigned job properly due to whatever reason, we turn them back to the agency and they are replaced with no unemployment chargeback to us.

Thanks for the response.

Temps and FMLA/ADA

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