The Essential Guide to Family & Medical Leave

chapter 2 | is your company covered by the FMLA? | 23
Is Your Company a Primary or Secondary Employer?
If your company is a joint employer, use the criteria below to determine
whether your company is a primary or secondary employer.
A primary employer is one who has authority to:
• hire and fire the employee seeking leave
• place the employee in a particular position
• assign work to the employee
• make payroll, and
• provide employment benefits.
If your company is responsible for these tasks, your company is the
primary employer. If not, your company is the secondary employer. Once
again, these factors give guidance but are not hard and fast rules.
Example: Your company has 33 employees on its regular payroll. Aaron works
for IS-2, a temporary agency that directly employs 21 IT technicians placed at your
company. IS-2 hires and fires these technicians, issues their paychecks, and provides
medical insurance coverage for them. Aaron needs to take time off for the birth of
his child.
Who is Aaron’s primary employer? Because IS-2 handles all of the employment obligations
for the IT technicians, IS-2 is Aaron’s primary employer. Your company is the
secondary employer because it uses Aaron’s services but is not otherwise responsible
for his employment.
TIP
When in doubt, act like the primary employer. If you aren’t sure whether
your company is a primary or secondary employer, the best practice is
to assume that it is a primary employer and give employees the required
notices, as discussed below. If a court is later asked to decide the issue,
you’ll have met your company’s obligations either way.