Employees Working for “Small Business” May Qualify for Medical Leave under the FMLA Using the Joint Employer Theory

Many employment laws only apply to certain business. For example, discrimination and sexual harassment under Title VII of the Civil Rights Act applies to employers that have at least 15 employees. Overtime cases under the Fair Labor Standards Act or FLSA require the employer have gross revenues of $500,000 a year.

The Family Medical Leave Act or FMLA requires the company to have 50 employees within 75 miles. However, where the employee is working for more than one company (joint employers) at a time the total number of employees for both companies may be used to meet the FMLA threshold.

This issue was critical in the Seventh Circuit’s recent decision in Cuff v. Trans States Airlines. Darren Cuff requested FMLA leave and instead he was terminated because, having only 33 employees, Trans States argued it was not obligated to provide FMLA leave. Not so fast.

While Cuff was paid by Trans States, he provided services for another company — GoJet (which employed more than 50 employees in the area). Because Cuff’s work was for both companies and his work benefitted both companies, the Court determined that GoJet was jointly his employer. As a result, Cuff met the 50 employee requirement and won.

These are the important takeaways from the Cuff case.

  • Even though the company who pays you may only have a few employees you still may qualify for FMLA Leave.
  • If you “work” for more than one company (e.g. placement firm, subsidiary or contractor) depending on the situation you may able to establish that there is a joint employer.
  • If you need FMLA leave or are suffering from discrimination or sexual harassment, don’t just give up because your company is too small. There may be alternatives.

It is important to check with an employment lawyer to fully evaluate all your options. If you would like to discuss your situation further contact the employment attorneys at Maduff & Maduff today.