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The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and  investment management.



Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has six offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 27 attorneys, senior benefits consultant and three paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2016, which highlights outstanding lawyers based on a rigorous selection process.




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The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

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Boston, MA 02110


Washington, D.C.

Tel: (202) 969-2800

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Tel: (813) 603-2959

Fax: (813) 603-2961

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Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

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San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119







June 22, 2017


 Health and Welfare Law Alert




  Federal Court Finds City, Not Staffing Agency, Employer for FMLA Purposes




The Fourth Circuit Court of Appeals, in Quintana v. City of Alexandria, has ruled that the primary employer for an employee claiming FMLA violations was a municipality and not the staffing agency that also exercised controlled over the employee.


Law. Under the FMLA, the primary employer is responsible for giving required notices to its employees, providing FMLA leave, maintaining group health insurance benefits during the leave, and restoring the employee to the same job or an equivalent job upon return from leave. In determining which of the two joint employers is primary, factors to consider include authority to hire and fire, assign or place the employee, make payroll decisions, and provide benefits.


However, DOL has taken the position that when a staffing agency and its client both exercise control over an employee, the staffing agency is usually considered the primary employer for FMLA purposes.


Background. In Quintana, an employee who had worked for a municipality for a year when she was told by the municipality that her employer was now a third-party staffing company. Most aspects of the employee's job remained the same following this transition, including her compensation, schedule, duties and performance evaluations.


When the employee's husband was hospitalized, she requested time off to care for him. Her supervisor responded that she could take up to three months leave without losing her job. In turn, the employee requested FMLA forms from the city and informed the staffing agency of the leave. Although the city never responded by providing the FMLA forms, the employee commenced her FMLA leave at the supervisor's direction.


When the employee contacted the city to provide an update on her husband's condition, she was told that she had been replaced because the city had not heard from her in more than a week. After attempting to appeal the termination, the employee sued the city claiming it had violated her FMLA rights.


The district court hearing the matter dismissed the employee's claim, finding that the city was not the primary employer for FMLA purposes. In response, the employee appealed to the Fourth Circuit.


Fourth Circuit. The Fourth Circuit reversed the district court's decision, finding that the employee had sufficiently alleged that the city was her primary employer. The court commented that the employee's allegations showed that the city exercised significant control over her employment and, as such, that it could be her primary employer.


The court also found that the employee had sufficiently alleged that the city had interfered with her FMLA rights. Specifically, the employee had claimed that the city had failed to provide the required FMLA eligibility notice, failed to approve her leave request, failed to restore her to an equivalent position and fired her for taking FMLA leave. 


The court also noted that, even if the city were found to be the employee's secondary employer, it could still be liable for FMLA violations. The court reasoned that the employee's assertion that the city erroneously granted her permission to take FMLA leave instead of directing here to the staffing agency for approval sufficiently states an interference claim. The court further found that the city's firing of the employee for taking FMLA leave was alone enough to allow her to continue her lawsuit, saying that neither primary nor secondary employers may retaliate based on FMLA-protected conduct.


Employer Takeaway. While DOL regulations set out specific requirements for both the primary and secondary employer in a joint employment relationship, i.e., where two employers exercise some control over the work and working conditions of the employee, Quintana confirms that having "secondary employer" status does not insulate an employer from its FMLA obligations. 


In determining which of the two joint employers is primary, factors to consider include authority to hire and fire, assign or place the employee, make payroll decisions, and provide benefits.





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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.