FMLA Entitlement with two related employers
pstringer
4 Posts
I have an employee who worked for one of the companies managed by Corporate and terminated about two months ago and went to work for another company managed by the same Corporate. She is now out for surgery with the second company. Both companies have their own Federal ID number and are not related at all. The only common denominator is the management company. Does the second company have to honor the employee's previous employment years with the other company for FMLA entitlement because of the common Corporate management?
Comments
1. interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment;
2. common management, common directors and boards;
3. centralized control of labor relations and personnel, i.e., hire and fire employees; and,
4. common ownership and financial control.
A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. All four criteria need not be present in all cases, but the Equal Employment Opportunity Commission, which administers the Civil Rights Act, considers the first three criteria to be the most important, with centralized control of labor relations to be most critical of these three. Although the standards are somewhat different, it is our opinion that an employer who meets the “enterprise” test under the Fair Labor Standards Act (FLSA) will ordinarily meet the integrated employer test. For purposes of FLSA, the “enterprise” consists of the related activities performed (either through unified operations or common control) by any person or persons for a common business purpose. Thus, separate entities may be so integrated that they are considered to be one employer, whether commonly owned or not.
Under joint employment, separately owned and operated companies may each exercise sufficient control over the employee that they are considered joint employers. The standards established under the Fair Labor Standards Act (FLSA) are used to determine joint employment under the FMLA. A joint employment relationship will be considered to exist in situations such as:
1. Where there is an arrangement between employers to share an employee’s services or to interchange employees;
2. Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
3. Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.
Similar to the determination process for integrated employers, the determination of whether a joint employment relationship exists is also not determined by the application of any single criterion; rather the entire relationship is to be viewed in its totality. For example, joint employment will ordinarily be found to exist when a temporary or leasing agency supplies employees to a second employer.