Joint employer issues are all the rage right now. Recently, the National Labor Relations Board (NLRB) put the screws to McDonald’s in finding that the Company is liable “jointly” along with their franchisees for alleged labor violations. So, it’s not shocking to learn that the U.S. Department of Labor recently jumped on the bandwagon, putting in its two cents on joint employers.

Last week, the DOL quietly issued a new Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers. Although the AI focuses largely on the Fair Labor Standards Act, the DOL issued Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.  This new AI and FMLA fact sheet were highlighted on the DOL’s own blog!

What precisely is a joint employer, you ask? The DOL sums it up in one sentence: “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.”

Where a joint employer relationship exists under the FMLA, one employer is considered the primary employer, while the other is the secondary employer. As the DOL points out, “determining whether an employer is a primary or secondary employer depends upon the particular facts of the situation.”  The main factors include:

  • who has authority to hire and fire, and to place or assign work to the employee;
  • who decides how, when, and the amount that the employee is paid; and,
  • who provides the employee’s leave or other employment benefits.

Keep in mind: According to the FMLA regulations, where a temporary placement or staffing agency provides employees to another company, the staffing agency is most commonly the primary employer.

In its AI, and as provided in the FMLA regulations, the DOL outlines the FMLA responsibilities for both primary and secondary employers:

Responsibilities of Primary Employers

  • Providing required FMLA notices to its employees, and providing FMLA leave
  • Maintaining group health insurance benefits during the leave
  • Restoring the employee to the same job or an equivalent job upon return from leave, and
  • Keeping all records required by the FMLA with respect to primary employees

Responsibilities of Secondary Employers

  • Prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA
  • Restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer, and
  • Maintaining basic payroll and identifying employee data with respect to any jointly-employed employees

Generally, a yawner of an AI. Come on, you have to agree, yes?

That said, the DOL did include in its AI this handy-dandy chart that at least looks pretty and contains links to other relevant fact sheets.  It’s worth a look.

Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.


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