The Family and Medical Leave Act requires that certain employers provide eligible employees with up to 12 weeks of unpaid leave during any twelve-month period when a qualifying event occurs. The Act, however, only provides protection to “eligible employees”. An “eligible employee” does not include any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50. The Act also only applies to covered employers. The term “employer” as used in the Act means one who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
Whether the plaintiff is an eligible employee or the employer is a covered employer is both jurisdictional and an element of the plaintiff’s cause of action; a judge as opposed to a jury determines whether the Act applies. If an employer doesn’t have enough employees to invoke the Act but there are related business entities, plaintiff’s counsel may argue that the multiple businesses should be treated as a single employer under what is known as the “single employer doctrine.” The doctrine is usually applied in cases of parent and subsidiary business entities.
The fifty-employee exception is an economic one rooted in protecting small businesses, and the purpose of the integrated employer test is to ensure that a defendant has not structured itself to avoid labor laws. In order to lump two or more employers together, the plaintiff must demonstrate that the corporate form is but a mirage and that the corporate entities were created for the purpose of evading the requirements of law.
Separate entities will be deemed to be parts of a single employer for purposes of FMLA if, and only if, they meet the “integrated employer” test.
1. Common management;
2. Interrelation between operations;
3. Centralized control of labor relations; and
4. Degree of common ownership and financial control.
The use of independent contractors can also present a challenge and plaintiff’s counsel may argue that independent contractors are, in fact, employees. When determining whether an individual is an employee under the Family Medical and Leave Act, the same test is used as applied under the Fair Labor Standards Act. The judge must look to the economic reality of whether the individual is economically dependent upon the alleged employer. The factors to consider are:
1. Degree of control exercised by the contractor;
2. Relative Investment by the contractor;
3. Contractor’s opportunity for profit and loss;
4. Skill and initiative required; and
5. Permanency of the relationship.
I personally represent entrepreneurs and business owners facing challenges from employees with regard to the Family and Medical Leave Act, Title VII, Fair Labor Standards Act and other federal and state employment laws. Call today if I can be of assistance. Referrals are always appreciated.
The process involves a partnership between me and each client.
In many cases, the best results are obtained through negotiations with the insurance adjuster culminating in a settlement.
It is my observation, however, that lawsuits are being filed in more automobile and motorcycle accident cases because the adjusters are unwilling to fulfill their contractual obligations and fully compensate the injured.