Recently, the DOL posted on its website here a number of opinion letters pertaining to issues connected with the Family and Medical Leave Act (FMLA). With the rising popularity of temps in the workforce, employers will want to take notice of the opinion letter issued April 4, 2004 here which addresses the issue of which individuals are counted toward the FMLA’s “50 or more employees” coverage test. The opinion letter states that it is the DOL’s belief that “a joint employment relationship ordinarily exists, for purposes of the FMLA, where a temporary agency supplies employees to a client employer,” holding that “[e]mployees who are jointly employed by two employers must be counted by both employers, whether or not maintained on only one of the employer’s payroll in a record-keeping sense, in determining employer coverage and employee eligibility under the FMLA.” (Another “outsourcing peril” that could be added to the list.)
See also this recent 11th Circuit court case of Morrison v. Magic Carpet Aviation, RDV Sports, Inc., Harry Mitchel, Alticor, Inc., f.n.a. Amway Corporation (decided September 8, 2004) which held that a “joint employment” relationship did not exist under the FMLA with respect to a contractor/pilot who was an employee of Company A but flew a plane in which Company B had a leasehold interest. Even though the pilot wore a Company B identification badge, Company B neckties, and a Company B parka, the court held that Company B did not have “direct control” over the pilot so as to create a “joint employment” relationship. (Company B in the case was RDV Sports which is the holding company which owns the Orlando Magic professional basketball team.)