“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not recognizing when you might trigger the FMLA by being an “integrated employer”

The FMLA applies to employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. However, separate companies will be considered to be part of a single employer for FMLA purposes if they meet the “integrated employer” test set forth in the FMLA regulations.

The integrated employer test includes the factors of: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control. 29 CFR §825.104(c)(2). When this test is met, employees of all entities making up the integrated employer will be counted in determining employer FMLA coverage and employee eligibility. Smaller employers in particular should be cautious.

In one case, the Supreme Court of Nebraska affirmed that two companies owned by the same person were integrated and an FMLA employer. A terminated employee filed suit against both companies, alleging FMLA violations. One company had 38 employees and the other had 17 employees, each below the 50-employee threshold. Common management was met where the owner made high-level management decisions for both companies and directed management of each company, who implemented his instructions. There was significant interrelation between operations because the two companies shared office space and some personnel; used the same bookkeeper and IT support person; the same project manager oversaw construction projects for both companies; and there was a common payroll process. The employees of one company reported to the other company’s premises to be dispatched to specific work locations. There were also several examples of employees moving between companies to meet overall labor needs. Finally, the owner owned 100 percent of one company and was the primary shareholder of the other company. Therefore, the employer was indeed an integrated employer under the FMLA, and subject to FMLA obligations. Pierce v. Landmark Mgmt. Grp., Inc., 2016 Neb. LEXIS 88 (S.Ct. Neb., June 24, 2016).

By contrast, the Third Circuit Court of Appeals recently affirmed that two companies owned by the same person were not an “integrated employer.” A former employee filed suit against both companies alleging FMLA violations. Each company had less than 50 employees. While the same person owned both companies, and could presumably hire or fire employees at either company, each company had separate managers who did not have authority in the other company. Each company also had separate offices, equipment, and records. Even though the owner had an office at each company’s location, and some employees periodically performed work or services for the other company, the Court stated this was insufficient to establish interrelated operations. While the owner had authority to hire and fire, he refrained from interfering with the direct manager’s decision to terminate the employee. Regarding common ownership, the Court decided that the common ownership, in itself, did not translate into the two entities having a corporation/division relationship. Kieffer v. CPR Restoration & Cleaning Services, LLC, 2018 U.S. App. LEXIS 12560 (3d Cir., May 15, 2018) (non-precedential opinion).

As these cases illustrate, this is a fact-intensive analysis. Small employers should carefully analyze business operations against the FMLA “integrated employer” test factors to determine whether they might actually be a covered under the FMLA.