Here’s another edition of our FMLA Update – including recent DOL guidance on Joint Employment, along with links to related expert commentary. We’re also linking to a series of Fact Sheets that were updated in 2015, as well as other tools and articles we found useful.
First up, Jeff Nowak, our primary go-to resource for all things FMLA, offers this resource from the American Bar Associaion issued annually every February: ABA’s Summary of 2015 FMLA Cases an Outstanding Resource for Employers, Attorneys. Jeff says, “This year’s report is as comprehensive as always — it summarizes 2015 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.”
DOL: January 20, 2016 – Joint Employment Under the FLSA and MSPA – Joint employment exists when a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute. The Fair Labor Standards Act (1938) and the Migrant and Seasonal Agricultural Worker Protection Act (1983) share the same definition of employment. This definition, which includes “to suffer or permit to work,” was written to have as broad an application as possible. Under these laws, it is possible for a worker to be jointly employed by two or more employers who are both responsible, simultaneously, for compliance.
On January 20, 2016, the Wage and Hour Division released an Administrator’s Interpretation concerning joint employment under FLSA and MSPA. The interpretation identifies common scenarios in which two or more employers jointly employ an employee and are thus jointly liable for compliance. It pulls together all the relevant authorities – statutory provisions, regulations, and case law – to provide comprehensive guidance on joint employment so employers can properly analyze a potential joint employment scenario.
Fact Sheet #28N: Joint Employment and Primary and Secondary Employer Responsibilities Under the Family and Medical Leave Act (FMLA) (PDF)
Employment Law & HR experts weigh in
- FMLA Insights: A Big Yawner? DOL Issues FMLA Fact Sheet Regarding Joint Employers
- HR.BLR: Joint employment under the FLSA, MSPA, and FMLA
- Matrix Radar: Caution, Joint Employers: The DOL is Looking for YOU!
- Law360: Steps For Avoiding Unexpected Joint Employment Liability
- Ohio Employer’s Law Blog: DOL doubles down on joint employment under the FMLA
- SHRM: Are You a Joint Employer? Department of Labor publishes guidance to clarify
- HR Morning: FMLA, FLSA implications in DOL’s new joint employer guidance
FMLA Update: Fact Sheets Updated in 2015
- Fact Sheet #28B: FMLA leave for birth, placement, bonding, or to care for a child with a serious health condition on the basis of an “in loco parentis” relationship
- Fact Sheet #28C: The definition of “parent” as it applies to an individual who stood in loco parentis to an employee for FMLA “eldercare” protections
- Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act
- Fact Sheet #28L: Leave under the Family and Medical Leave Act for Spouses Working for the Same Employer
- Fact Sheet #44: Visits to Employers
Noteworthy FMLA articles
- HR Daily Advisor: Reinstatement Rights under the FMLA and ADA
- HR Daily Advisor: Targeting FMLA Fraud and Abuse
- HR Daily Advisor: Calculating FMLA leave for shift and variable schedules
- FMLA Insights: DOL Continues to Warn Employers of Investigation of Systemic FMLA Issues
- FMLA Insights: The FMLA Marriage Penalty: When Spouses Work for the Same Employer
- HR Morning: FMLA: Is phone text enough to provide notice of need for leave?
- SHRM: Surveillance Can Uncover FMLA Abuse
- HR Hero Online: Moonlighting during FMLA leave
- HR Hero Online: How to curb intermittent FMLA leave abuse