Fifth Circuit Rules That Staffing Company Is Primarily Responsible For Ensuring Compliance With Temporary Employee's FMLA Rights

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A recent court ruling by the federal Fifth Circuit Court of Appeals granted some protection to companies that hire temporary employees through a staffing agency.  In the case, a temporary worker placed at a client site by a staffing agency took authorized maternity leave protected by the Family and Medical Leave Act (FMLA). While the worker was on her leave, the client company permanently filled her position with another employee from the staffing company.  The staffing company never asked the client company to keep the position open or to hire a replacement only for the duration of the employee's leave. When the employee returned to find her previous position filled, she brought a lawsuit against the client company, alleging it interfered with her FMLA rights by "convincing" the staffing agency to replace her with another employee. The court held that typically the primary employer (i.e., the staffing agency) bears the burden of job reinstatement under the FMLA and that, absent a request from the staffing agency to keep the position open during the leave, the client had no such obligation as a secondary employer. Given the American Staffing Association’s disclosure earlier this month that nearly 2.96 million individuals work as temporary employees through staffing agencies, affected employers should continue to watch for developments regarding joint liability situations in this area. Moreover, employers should also bear in mind that this case only has legal force in the states covered by the Fifth Circuit, and should carefully assess their obligations in this regard in accordance with applicable law.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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