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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| November 12, 2017

SAME JOB FOR OVER A YEAR, BUT NO FMLA?

QUESTION: I was hired through a staffing agency to work for an engineering firm, and worked for the company – with my pay and benefits from the staffing agency – for 10 months. Eight months ago, I was hired directly by the engineering firm. Three weeks ago, I learned I am going to need open heart surgery, and will need from four to six weeks off. I applied for an unpaid leave, but was told I wasn’t eligible, because I haven’t been working for the company for 12 months – they don’t count the 10 months I was working for the staffing agency. If I can’t get leave, I’ll lose my job. Can they do this?

ANSWER: Under the Family and Medical Leave Act (FMLA), an employee is entitled to up to 12 weeks unpaid leave for a serious medical condition if they have worked a total of 1,250 hours for the employer in the 12 months before the request for leave. While you have not been on the payroll of the engineering firm for a year, that is not the end of the matter. Under the FMLA, where two employers have a “joint” relationship, the time spent working on the payroll of one employer may count as time worked for both.

The FMLA specifically recognizes that a joint employment relationship will “ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.” 29 CFR 925.106(b)(1). The U.S Court of Appeals has also held that the relationship between a staffing agency and the company to which they supply workers is a “joint employment” relationship. Grace v USCAR, 521 F.3d 655 (CA 6, 2008). If this relationship exists, the hours you spent working at the engineering firm while on the staffing agency payroll will count towards the 1,250 hours required for FMLA eligibility. Mackey v. Unity Health System, 2004 WL 1056066 (WDNY 2004).

If the engineering firm is a “covered employer” under the FMLA, employing at least 50 people either as direct hires or through a staffing agency, you should be fully entitled to FMLA leave.

If your employer continues to deny your right to FMLA leave, you may wish to consult with an attorney. The lawyers at GWINN TAURIAINEN 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.gwinntauriainenlaw.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
http://www.gwinntauriainenlaw.com/

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