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

| July 15, 2018

STAFFING AGENCY MISCOUNTS ITS WORKERS, VIOLATES FMLA

QUESTION: I’ve been working as an analyst at a tech company for just over a year, but I was hired by a staffing agency, which also issues my paychecks. My wife has cancer and is going to start chemotherapy soon; so, I asked for six weeks off so I could help take care of her. Human Resources told me I was in a “joint employer situation” and I should ask the staffing agency, because they’re my “primary employer.” So, I got in touch with the staffing agency, and they wrote back saying I’m not eligible for leave because they do not have 50 people working on behalf of the technical company within 75 miles of my worksite. I know for a fact they have people working for them at companies all over southeast Michigan. My boss at the tech company said he would try to rehire me if I leave to take care of my wife, but he couldn’t make any guarantees. What can I do?

ANSWER: The staffing agency is apparently denying you leave based on a tortuous and flat-out wrong reading of the Family and Medical Leave Act (FMLA). You should get back in touch with the staffing agency ASAP – and possibly get in touch with a lawyer as well.

Workers may be eligible for up to 12 weeks’ unpaid leave under the Family and Medical Leave Act for their own serious medical condition, or that of a close family member (wife, child, parent), if they meet a couple of basic requirements: They must have worked for at least 1,250 hours within the 12 months preceding the leave, and the company they work for must employ at least 50 people within 75 miles of the employee’s worksite. The issue the staffing agency got wrong is how to count the 50 employees in a “joint employer” situation, where an employee is hired by and paid by one company (staffing agency) but works for and at another company (in your case, the tech company).

Generally, the employer who hired you, and who cuts your check – here, the staffing agency — is the primary employer, and is the employer from whom you should ask leave. Since you have been working for the staffing agency at a particular physical location for a year, your worksite is that location – the technical company. If you’d been working for the technical company for less than a year, the worksite would be “the primary employer’s office from which the employee is assigned or reports” – the staffing agency’s HQ.

From what you describe, the staffing agency mixed up two ideas, and found a reason to deny you leave that just doesn’t exist. Its reasoning was so unusual, we called the United States Department of Labor (DOL) to make sure the law hadn’t somehow been reinterpreted in the past few weeks. The DOL spokesman assured us the law is unchanged: An employer is subject to the FMLA if it has at least 50 people on its payroll within a 75-mile radius of the employee’s worksite, 29 CFR 825.111(a) and (c). The staffing agency cannot deny you leave because it doesn’t have 50 people working on behalf of the particular technical company within 50 miles of your worksite; it can only deny you leave if it doesn’t have 50 people on its payroll working within 75 miles of your worksite. Whether the other people on its payroll are placed at the technical company you work for or as contract workers at General Motors or General Dynamics is irrelevant – what matters is that the staffing agency employs 50 people within 75 miles of your worksite.

If, as you say, the agency has more than 50 people working for it at different companies all over the area, its denial of your leave request violated your rights and the law.

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.

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 LEGAL PLLC. To view previous columns, please visit our website.

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
daniel@gwinnlegal.com
www.gwinnlegal.com

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