Ask The Lawyer By: Daniel A. Gwinn, Esq.
CONTRACT EMPLOYEE WANTS LEAVE; DOES WORKPLACE EMPLOYER HAVE TO REHIRE?
QUESTION: I work in Human Resources at a large company. In addition to our “permanent” workforce, we hire almost a hundred people through a staffing agency, to work for us on short-term, large-scale projects. One of our contract workers has asked for six weeks off under the Family and Medical Leave Act. I told him to take it up with the staffing agency. If he leaves this job, we can’t give him any guarantee he can come back. He’s raising a stink and saying we violated his rights.
ANSWER: Under the Family and Medical Leave Act (FMLA), a staffing agency and the firm to which it provides employees are likely “joint employers.” The company that pays the worker’s wages, and that has the ability to hire and fire is the “primary employer.” In the situation you describe, the staffing agency is most likely the primary employer. Under the FMLA, 29 CFR 825.106(c) only the primary employer is responsible for providing FMLA leave and maintaining health benefits (if any). Your advice to take it up with the staffing agency was probably correct. Your worker should ask for leave from the staffing agency and remind the agency of the law – 825.106 – if he encounters any problems.
If the worker receives FMLA from the staffing agency, it must return him to the same position, or a similar position, when he is ready to return from leave.
If you are unsure whether you are a primary or secondary employer, you may want to consult with an attorney. The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
www.gwinnlegal.com
