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9191 Broadway
Merrillville, IN, 46410
United States


Burke Costanza & Carberry LLP your smart choice for lawyers in Northwest Indiana. Our full-service law firm has offices in Merrillville and Valparaiso Indiana as well as one in Chicago Illinois. At BCC, our lawyers pride themselves on being able to provide a wide range of legal services to our clients, who benefit from the depth and experience we provide from top to bottom.

The main practice groups at Burke Costanza & Carberry LLP are: Alternative Dispute Resolution, Commercial Services, Civil Litigation, and Business and Personal Services.

Our attorneys represent businesses and government entities in the following areas: Business Planning, Commercial Law, Construction, Labor & Employment, Governmental Entities, Healthcare, Labor, Pension Profit-sharing & Employee Benefits, Real Estate, Taxation, and Worker's Compensation.

Our lawyers also represent individuals in matters such as Estate Planning, Wills and Trusts, Immigration, Family Law, Probate Administration, Real Estate, and Taxation.

Burke Costanza & Carberry LLP is a well-rounded firm with strong roots in Northwest Indiana that is focused primarily on our lawyers providing clients with the highest quality legal service in a broad range of practice areas.

Labor & Employment Blog

Joint Employers under the FMLA

Burke Costanza & Carberry LLP

A recent decision of a U.S. District Court reminded me of some of the lesser-known legal principles that expand an employer’s legal liability. This particular decision involved the Family and Medical Leave Act (FMLA) and an employer who uses a Professional Employer Organization (PEO) as a way of outsourcing some of its Human Resource (HR) functions.  This is a relatively common practice in a variety of industries. 

PEOs recruit, do payroll, administer benefits, hire, fire, and or perform other human resource functions.  Hiring a PEO may result in cost savings, but employers should do their due diligence before signing on.  Consider the case Kuhn v. Comfort Hospice Care, LLC. 

Comfort Hospice Care, LLC (CHC) had thirty-six (36) employees working at locations in Nevada and Utah. CHC had an agreement with a PEO in which the PEO did a variety of administrative HR tasks.  CHC retained the right to hire, fire, and control the daily tasks of employees. 

A CHC employee requested FMLA leave, but was denied.  The employee sued alleging that CHC has interfered with her ability to take leave under the FMLA, and had retaliated against her for requesting leave. 

FMLA Coverage:
CHC moved to dismiss the lawsuit arguing that that CHC was not subject to FMLA requirements because CHC did not have the requisite fifty (50) employees to be covered by the FMLA.  The Court agreed and dismissed the case. 

But the court offered a reminder to employers to be careful about joint employment.  The Court stated, “It could be argued … that [CHC] is a joint employer with [the PEO], thus presumably placing [CHC] above the 50 employee threshold.”  The employee did not argue that CHC and the PEO were joint employers, and the court stated that there was no joint employment relationship in this case.  

Joint Employment:
So what is joint employment?  Generally speaking, joint employment is when two or more separate entities are considered one entity as it relates to coverage and liability under the FMLA.  The primary issue in determining whether there is joint employment is control.  Courts look to who has the right to hire, fire, assign, direct, or control the work of employees.  If the entities share control, it is likely that they will be considered joint employers.  Performing administrative tasks alone usually does not result in a joint employment relationship. 

If joint employment exists, employers that do not meet FMLA coverage requirements alone may be liable for violations of the FMLA as joint employers.  This has serious practical implications for an employer, including providing leave to eligible employees and other possible liability for past denials of leave. 

Action Items:
Employers should:

  1. Identify any relationships employers have with PEOs or other similar organizations;
  2. Carefully analyze those relationships to determine if a joint employment relationship exists; and
  3. Take proactive action to ensure that they are compliant with the FMLA.

Please contact us if you have any questions.