Many companies employ temporary workers on a trial basis for several months before offering them a job. It’s a good way to check out their skill level, knowledge, behaviors and even soft skills, such as their ability to work in teams.

However, a change to the Family and Medical Leave Act (FMLA) may have thrown a monkey wrench into that process.

According to a new appeals court ruling by the U.S. District Court for the Eastern District of Pennsylvania (Meky v Jetson, ED Pa, 2017), employers must now count the time employees spent as temp workers toward Family and Medical Leave Act (FMLA) eligibility.

How FMLA Can Affect You: A Real-Life Example

This court case is a bit convoluted but here are the main facts as related to FMLA:

On Jan. 27, 2014, a staffing agency – Hobbie Personnel Services – placed Lamia Meky as a temporary worker at Jetson Specialty Marketing Services, Inc. The staffing agency and Jetson are joint employers. Later that year, on July 2, Meky was hired as a permanent employee with Jetson.

Three months later, Meky complained of sexual harassment by her supervisor, who resigned shortly after. Toward the end of 2014, Meky requested FMLA leave for the following summer to care for her mother in Egypt following a scheduled operation.

However, the company denied her request because she was not eligible for FMLA leave. HR claimed she did not meet the law’s one-year service requirement.

The following March, Meky was fired for leaving work early. Apparently, she felt uncomfortable being around an employee who she claimed had threatened her with a pair of scissors and left work before the end of her shift.

She sued the company for several reasons, including retaliation and interference of the FMLA. However, Jetson argued that she was not eligible for FMLA leave because of her July start date as a permanent employee.

At the heart of the matter involving FMLA was which date should human resources have used to calculate her length of employment? Was it when she began working at Jetson as a temporary worker or permanent employee?

Meky argued that her time spent as a temporary worker should be counted because Hobbie was a joint employer with Jetson.

The court turned to the Fair Labor Standards Act as guidance, which states that 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.”

What Constitutes an Employee Under FMLA?

But the definitions of employee, employer and employ under the FMLA are broad. The U.S. Supreme Court has also held that the FMLA’s definition of employ “stretches the meaning of ‘employee’ ” to cover” workers who may not otherwise qualify under the traditional definition. So the court applied this standard and ruled in favor of Meky, stating that Jetson employed Meky since Jan. 27 versus July 2, when it first permitted her to work.

Although the FMLA took effect more than 20 years ago (in 1993), it’s still as confusing as ever and considered one of the most complex employment laws for organizations to understand, follow and administer. This case is simply one example.

In Summary

This new court ruling may significantly impact employers who rely on temporary workers to help supply their pipeline of talent. But some staffing agencies believe it will have little, if any, impact on their business.  Still, it’s important for recruiters and staffing professionals to stay on top of new or changing employment laws if for no other reason than to enhance their image or reputation among their client base as an informed and valuable partner.