Employer Coverage–Counting the Number of Employees: Employers who have 50 or more employees within a 75 mile radius are required to provide family leave under the Family Medical Leave Act (FMLA). What if the employer is a small subsidiary of a larger parent company? Does the subsidiary need to include the parent’s number of employees in its count? The answer depends upon whether the subsidiary can be considered an “integrated employer” with the parent, such that the following four factors exist between the parent and sub: (1) common management, (2) interrelation between operations, (3) centralized control of labor operations, and (4) common ownership or financial control. As a recent New Hampshire case points out, the mere fact that a sub pays its parent for certain accounting and administrative functions does not alone establish an integrated employer relationship. Consequently, if the parent and sub are otherwise distinct in terms of their respective business operations and labor force, then an employee of a subsidiary may not be able to include the parent company’s employees to establish the 50 employee count triggering FMLA. Since the test for integrated employers is fact intensive, please contact an employment law attorney to determine whether your company is subject to the FMLA.
Employee Eligibility—Counting the number of months worked: In order to be eligible for FMLA, an employee must have both (a) worked for his employer for at least 12 months, and (2) logged over 1,250 hours of service for that employer during the 12 month period prior to the taking of the leave. What if the employee has logged enough hours, but has not worked for the employer for 12 consecutive months prior to the taking of the leave? The Department of Labor regulations explain that the 12 months the employee must have been employed do not have to be consecutive for the employee to be eligible for FMLA leave. A decision out of Maine suggests that an employee’s prior work time with the employer during the past five years can even be added up to satisfy the twelve months of work requirement, notwithstanding notable gaps in the employee’s employment by the employer. Whether this Maine decision will be appealed or followed in the Northwest is uncertain. Nevertheless, it raises an interesting point: if the 1,250 hours requirement is met, but the employee has not worked for 12 consecutive months prior to leave starting, employers should look at whether the employee worked previously for the employer within the past five years when adding up the total number of months worked.