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June 22, 2017
Health and Welfare Law
Federal Court Finds
City, Not Staffing Agency, Employer for FMLA Purposes
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
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
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.
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.
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.
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.
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
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.
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
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.