How are the FMLA obligations divided when there are joint employers?

A joint employment relationship may exist when two or more businesses exercise some control over the work or working conditions of an employee. Both have obligations under the FMLA.

What obligations belong to the primary employer? When employees are shared by two or more employers, the primary employer is responsible for the substantive requirements of the FMLA, such as giving required notice to its employees, providing leave, maintenance of health benefits and job restoration.

Who is the primary employer? Factors used to determine which employer is primary include authority and/or responsibility to:

• hire and fire;

• assign and place the employee;

• make the payroll;

• provide employment benefits.

For employees of a temporary help or leasing agency, the primary employer would most commonly be the placement agency. Professional employer organizations (PEOs) are not joint employers if they contract with clients merely to perform functions such as payroll and benefits administration; however, PEOs that have the right to hire, fire, assign, or direct and control employees, or benefit from the work they perform, are joint employers.

What obligations belong to the secondary employer? Secondary employers must comply with the prohibited acts provision of the FMLA with respect to jointly employed employees, whether or not the secondary employer is covered by the FMLA. But they must comply with all provisions with respect to their regular, permanent work forces. The secondary employer is responsible for accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency, and the agency chooses to place the employee with the secondary employer.