Temporary Work a Factor When Calculating FMLA Eligibility

Time spent working as a temporary employee is tacked on when determining eligibility under the Family and Medical Leave Act (FMLA), the U.S. District Court for the Eastern District of Pennsylvania recently ruled.

Lamia Meky began working as a temporary employee through a staffing agency at Jetson Specialty Marketing Services Inc. on Jan. 27, 2014. On July 2, 2014, Jetson hired her as a permanent employee. In late 2014, Meky requested FMLA leave for the following summer but Jetson advised Meky that she was ineligible because she had not worked enough time at Jetson to be eligible. A few months later, on March 9, 2015, Jetson terminated Meky's employment for leaving work early. Meky sued Jetson for, among other things, interfering with her rights under the FMLA.

[SHRM members-only how-to guide: How to approve or deny a request for FMLA leave]

One question facing the court was which date it should use to calculate the length of Meky's employment. Meky had worked at Jetson since Jan. 27, 2014, though as a temporary employee before Jetson hired her on July 2, 2014. From Jan. 27, 2014, through July 2, 2014, Jetson and the staffing agency were joint employers. Finding no authority on this point in the 3rd U.S. Circuit Court of Appeals, the court sought guidance from a handful of district courts outside the circuit that had been confronted with similar issues.

The appeals court held that the correct date for calculating Meky's length of employment was Jan. 27, 2014—the date on which she started working at Jetson as a temporary employee. In so deciding, the court noted the FMLA's purpose and broad definitions. Under the FMLA, an "eligible employee" is "an employee who has been employed ... for at least 12 months by the employer with respect to whom leave is requested." Looking to the Fair Labor Standards Act for guidance, the court interpreted "employed" to mean when Jetson first permitted Meky to work. Applying this standard, the court concluded that Jetson employed Meky as of Jan. 27, 2014, "when it first permitted her to work."

Meky v. Jetson Specialty Mktg. Servs. Inc., No. 16-1020 (E.D. Pa. March 6, 2017).

Professional Pointer: When calculating eligibility under the FMLA, an employer should be mindful of whether the employee performed work as a temporary employee before being hired and, if so, include that time in its calculation.

Jacqueline R. Barrett and Leigh Ann Culpan are attorneys with Ogletree Deakins in Philadelphia.

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