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Joint employment exists when an employee is employed by two or more employers who both benefit from the employee’s work and are sufficiently related or associated with each other.  The analysis for determining joint employment under the FMLA is the same as under the FLSA.

Joint employment can exist when employers have the arrangement to share the employee’s services or when one employer acts in the interest of the other in relation to the employee.  Joint employment is based largely on the degree of association between the employers and how the employers may jointly control the employee.

Factors key to determine joint employment include:

  1. Do the employers have any overlapping management or share control over operations?
  2. Is supervisory authority over the employee shared and/or do they share clients or customers?

According to the Department of Labor’s fact sheet, employees who are jointly employed by two employers must be counted by both employers in determining employer coverage and employee eligibility under the FMLA, regardless of whether the employee is maintained on one or both of the employers’ payrolls.

When joint employment is determined, one employer will be deemed primary and one will be secondary.  The employee’s worksite which the employee is assigned and reports to is the primary employer.  However, if the employee has physically worked for at least one year at a facility of a secondary employer, the employee’s worksite is that location.

Under the FMLA, the primary employer is responsible for following and administering the FMLA for the employee including 1) providing required notices, 2) providing FMLA leave, 3) maintaining group health insurance benefits during the leave, 4) restoring the employee to the same job or an equivalent job upon return from leave, and 5) keeping all records required by the FMLA with respect to primary employees.

The secondary employer, whether an FMLA-covered employer or not, is prohibited from interfering with a jointly employed employee’s exercise of or attempt to exercise his or her FMLA rights or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA.  The secondary employer is responsible in certain circumstances for restoring the employee to the same or an equivalent job upon return from FMLA leave and they must keep basic payroll and identify employee data.

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