Part-Time and Temporary Employees,
FMLA Eligibility, and the
NLRB “Joint Employer” Ruling
Presented by:
Mike Bourgon
Mike Conroy
Part-Time, Temporary and
Seasonal Employees
Introduction
Part-Time Employees
Employers often hire part-time or temporary workers to
help with increased work demands or seasonal industry
fluctuations that sometimes occur in certain industries.
Most states define part-time employees as those who
work less than 35 hours per week, compared to full-time
employees who typically work for 40 hours or more.
Introduction
Part-time employees are typically paid on an hourly
basis, and must comply with company rules, policies and
obligations, such as performance goals, safety rules,
and company business practices. Even so, part-time
employees generally have limited or no company
benefits, such as health benefits, vacation and sick time,
paid holidays, and unemployment compensation, among
others, unless required by state labor laws and/or
company policies.
Introduction
Under federal laws, part-time employees are treated the
same as full-time employees under the Fair Labor
Standards Act (FLSA) concerning minimum wage,
overtime pay, recordkeeping and child labor. In addition,
part-time employees are covered under OSHA’s safety
and health policies concerning work-related injuries,
illnesses, and occupational fatalities. Under the
Employee Retirement Income Security Act (ERISA),
part-time employees who work 1,000 hours or more
during a calendar year may be eligible for retirement
benefits.
Introduction
Temporary Employees
Temporary employees are typically hired to cover for
absent employees (such as those who are on maternity
or disability leave) and temporary vacancies, or to fill
gaps in a company’s workforce. Temporary employees
may be hired directly or through a temporary staffing
agency – in which case the temp is on lease with the
staffing company, but not an employee of the client
company that uses its services.
FMLA FAQ: Does Temporary Employment
Count Toward FMLA Eligibility?
Does Temporary Employment Count
Toward FMLA Eligibility?
Q: We regularly utilize temporary employees, some
of whom we hire permanently. Does the time
they work as a temp (through an agency) count
toward the 12-month and 1,250 hour eligibility
requirements?
Does Temporary Employment Count
Toward FMLA Eligibility?
A: An employee is eligible to take FMLA leave when,
among other things, he/she has worked for the
employer for 12 months (which, of course, need not
be consecutive) and worked 1,250 hours in the
previous 12-month period.
Does Temporary Employment Count
Toward FMLA Eligibility?
According to the Department of Labor, the time worked
as a temporary employee does indeed count toward the
12-month service and 1,250 hour requirement. In one
short sentence in the FMLA regulations, the DOL sums
up its position:
“joint employment will ordinarily be found to
exist when a temporary placement agency
supplies employees to a secondary employer.”
29 C.F.R. 825.106(b)(1)
Does Temporary Employment Count
Toward FMLA Eligibility?
This position is only further cemented by a long-standing
1994 DOL opinion letter, in which the agency confirmed
that “the time that the employee was employed by the
temporary help agency would be counted towards the
eligibility tests” under the FMLA. The courts generally
have agreed with DOL’s position. Mackey v. Unity
Health System (finding that, for FMLA eligibility
purposes, “an employee’s term of employment begins
once assigned by the temporary agency, rather than
when hired as a permanent employee”).
Does Temporary Employment Count
Toward FMLA Eligibility?
No wiggle room here, as far as the DOL is concerned.
As to FMLA eligibility, a temp employee apparently is
no different than a regular employee on day one.
No 326-point joint employer test required. No nothin’.
It’s just a done deal.
Does Temporary Employment Count
Toward FMLA Eligibility?
Since we’re on the topic, one additional point is worth
noting with respect to temporary employees: keep in
mind that the primary employer (i.e., the temp agency)
is responsible for providing the required FMLA notices,
administering FMLA leave and maintaining health
benefits. The secondary employer (i.e., the one
receiving the employee’s services) becomes
responsible for these obligations only after the
individual becomes employee an employee of the
secondary employer permanently.
How to Manage Your Temporary/Contract
Employees for Top Performance
How to Manage your Temporary/Contract
Employees for Top Performance
Long gone are the days when most contingent workers
came to a place of business just to fill in for a
vacationing or sick “regular” employee. Companies
today bring temporary workers in for long-term
(sometimes indefinitely so) assignments, many of them
critical to an employer’s success.
How to Manage your Temporary/Contract
Employees for Top Performance
Companies now routinely also bring in highly skilled —
even executive level — contingent workers to complete
special projects or to help manage or even lead a
company through a touch transition.
And, of course, many businesses now look to
temporary staffing firms to bring them potential
employees on “temp-to-hire” contracts, allowing both
the worker and the business to check out the position
to see if the worker and the job/company are a good fit
for each other.
How to Manage your Temporary/Contract
Employees for Top Performance
Yet, and we do see this frequently, many managers still
treat their contingent workers like second-class
citizens. There are “our employees” and “the temps.”
How to Manage your Temporary/Contract
Employees for Top Performance
Instead, we recommend you look at your temporary
employees as potential regular employees (after all,
you very well may hire them yourself!). Take the time
to help them feel as if they belong, that they are an
important part of your team.
How to Manage your Temporary/Contract
Employees for Top Performance
When you hire a temporary, especially for a long-term
assignment, take the time to give plenty of detail about
the open position and the skills and background you
feel are necessary of the person who ends up filling the
slot. Let your staffing agency know of the kind of your
company’s culture and the kind of person who fits best
within it.
How to Manage your Temporary/Contract
Employees for Top Performance
Once the temporary employee arrives, give her an
orientation. Give a thorough explanation of the job’s
duties, as well as a tour of your facilities, break times,
lunch times, where the rest rooms are located.
How to Manage your Temporary/Contract
Employees for Top Performance
Let your temporary workers be “in the know.” Give
them information about your business and how their
work fits in to your goal’s. Invite your contingent
workers to staff and department meetings. Share
company memos and announcements with them.
NLRB “Joint Employer” Ruling
NLRB “Joint Employer” Ruling
In recent decades, U.S. companies increasingly have
sought to jettison workforce headaches by jettisoning
the workforce, turning to staffing agencies to supply
employees rather than employing them directly.
NLRB “Joint Employer” Ruling
The ranks of temporary workers have swelled to more
than 3.4 million nationwide, or more than 2% of total
U.S. jobs, according to the National Employment Law
Project. Temps are attractive to businesses because
the workers often don't get health benefits and can be
cut quickly.
NLRB “Joint Employer” Ruling
But that employment arrangement was dramatically
altered last week when the National Labor Relations
Board ruled that a Silicon Valley recycling center was a
"joint employer" along with the staffing agency that
provided that facility's workers.
NLRB “Joint Employer” Ruling
The ruling determined that companies using workers
hired by another business — including temp agencies,
contractors and fast-food franchisees — are also
responsible for labor violations. Those firms could also
to required to bargain with unions representing
outsourced employees, along with the staffing agency
or franchise that hires them.
What is the NLRB and what does it do?
Let’s start with the basics.
What is the NLRB and what does it do?
What is the NLRB and what does it do?
The NLRB is the agency that regulates and implements
the National Labor Relations Act. It's also known as
the Wagner Act, created in 1935. This is the act that
covers labor laws relating to unions, and it covers most
private sectors. The NLRB handles violations of
anything from interfering with labor elections to
interfering with the basic fundamental right to engage in
concerted action to address workplace problems.
What is the NLRB and what does it do?
Other agencies also regulate labor. The Department of
Labor's jurisdiction is the Fair Labor Standards Act,
which covers minimum wage, overtime laws. The
Equal Employment Opportunity Commission handles
discrimination. And each state has its own Department
of Labor.
What was the definition before, and how
has the decision changed that?
The ruling altered the definition of a "joint
employer."
What was it before, and how has the decision
changed that?
What was the definition before, and how
has the decision changed that?
Under the Reagan administration, the appointees to the
National Labor Relations Board came up with a strict
definition of what constitutes a joint employer. The
definition focused on the degree of control. You had to
have direct control over operations, hours, working
conditions. Unless you were able to show that, you
were not able to hold the parent company liable.
What was the definition before, and how
has the decision changed that?
With this new definition, you no longer have to show
direct control over operations. If you have a franchise
agreement or a contractual relationship, depending on
the industry, that is enough to show you have influence
over working conditions.
What does that mean for workers employed
by a staffing agency or contractor?
What does that mean, practically speaking, for
workers employed by a staffing agency or
contractor?
What does that mean for workers employed
by a staffing agency or contractor?
The NLRB loosened the definition of a joint employer, and
that is really how you hold employers or a company liable for
unlawful violations of a staffing agency or contractor.
Over the last 25 - 30 years, employers have used staffing
agencies and subcontracting arrangements to evade liability.
That way if there is a labor violation, companies can claim
that they were not the employers and that you have to deal
with contractors. The problem is many of these contractors
are illegitimate. Going after the contractor, whether it's for
wage violations or labor violations, you are really not going
to get anything. They just shut down and declare
bankruptcy.
What does that mean for workers employed
by a staffing agency or contractor?
Now, that company is also liable, not just the
contractor.
How could workers at franchises use this
ruling to their benefit?
How could workers at franchises, say McDonald's
or Burger King, use this ruling to their benefit?
Especially fast-food workers who have been
protesting for better working conditions and a $15
an hour minimum wage?
How could workers at franchises use this
ruling to their benefit?
Part of the strategy of that campaign is to bring
McDonald's and similar parent companies to the table
as far as any issues dealing with labor violations.
McDonald's has been saying these issues have to be
dealt with independently at franchisees.
How could workers at franchises use this
ruling to their benefit?
Under the NLRB ruling, if there is an opportunity to
engage in unionization, McDonald's would have to
come to the table to negotiate. It can't just be
franchisees. McDonald's can also be held responsible
for any attempt to stop workers from unionizing or any
interference, including intimidating workers or
retaliating against workers trying to unionize.
How could workers at franchises use this
ruling to their benefit?
The NLRB also has the power to influence the
Department of Labor and other federal agencies that
cover other areas of worker law. It's very easy to see a
possible scenario where you are using the same joint
liability standard. You could argue that in court and go
before a judge, or you could try to get the Department
of Labor to change its definition.
NLRB’s New Joint Employer Test
May Impact OSHA
NLRB’s New Joint Employer Test May
Impact OSHA
Under the board’s new test, two or more otherwiseunrelated employers may be found to be a joint
employer of the same employees if they “share or codetermine those matters governing the essential terms
and conditions of employment.” Reserving authority to
control the terms and conditions of employment, even if
not exercised, is clearly relevant to determining
whether there is joint employment, the board said.
But does the decision have ramifications beyond the
labor relations context?
NLRB’s New Joint Employer Test May
Impact OSHA
Liability Under OSH Act
Liability Under OSH Act
The board’s decision may also expand liability under
the Occupational Safety and Health Act (OSH Act).
Under the act’s multi-employer policy, an employer
could already be cited for hazards to other employers’
employees if the Occupational Safety and Health
Administration (OSHA) found that the employer
controls the hazard or is responsible for creating the
hazard or correcting the hazard.
Liability Under OSH Act
Accordingly, “controlling employers” have already faced
potential liability. However, the NLRB decision may
allow OSHA to further expand controlling liability to
employers who really have little or no actual control
over workplace safety.
Lawmakers Push Back Against
NLRB Joint Employer Ruling
Lawmakers Push Back Against NLRB
Joint Employer Ruling
The franchise industry is taking the joint employer fight
to Congress.
Lawmakers Push Back Against NLRB
Joint Employer Ruling
Republican leaders of the House and Senate labor
committees have introduced legislation to undo the
recent National Labor Relation's Board ruling that
expanded the definition of a joint employer. Instead of
classifying franchisors as employers even if they only
influence employees indirectly, the bill would force the
return to a definition in which companies can only
considered employers if they have "direct and
immediate" control over workers.
Lawmakers Push Back Against NLRB
Joint Employer Ruling
The NLRB's decision in late August to adopt a broad
definition of joint employer has faced immense
backlash from the franchise community. While labor
advocates have celebrated the new standard, as it
allows for employees of large franchises to unionize to
more broadly address issues such as minimum wage,
franchisors have fiercely opposed the change.
Synergy Contact Information
Mike Bourgon
651-270-2281
mike@synhr.com
Michael Conroy
651-325-5395
mconroy@synhr.com
www.SynHR.com
1-888-603-7872