500? Counting Employees Under Families First Coronavirus Response Act
The Families First Coronavirus Response Act (FFCRA) does not apply to employers with 500 or more employees, but it does not explain how employers should count employees. Additionally, it does not explain whether employees of integrated enterprises or related entities count as a single unit. The U.S. Department of Labor (“DOL”) will likely issue further guidance. But, we don’t have it yet.
So what is an employer to do until there is guidance? One strategy is to borrow the rules from the Family and Medical Leave Act (“FMLA”) for counting employees. It seems likely the DOL would want consistency between FMLA and FFCRA.
Under the FMLA, a corporation is a single employer. The employees in separate divisions or locations count collectively. See 29 CFR 825.104(c). Where a corporation has an ownership interest in another corporation, the question of whether count collectively is more complex. Normally, they are do not count together. However, if the “Integrated Employer” or “Joint Employer” rules apply, then an employer may need to count them together. See 29 CFR 825.104(c)(1). Further complication arise in the context of a workplace in which employees from staffing agencies work. Sometimes those temporary employees count as employees of both the staffing company and the company borrowing the temps. The DOL recently issued a revised Fact Sheet addressing Joint Employer status under the FMLA. See https://www.dol.gov/agencies/whd/fact-sheets/28n-fmla-joint-employment.
Another thing to remember is that employers cannot have it both ways. If you argue a workforce size number under one law, the DOL will likely consider that when it counts employees for another law.
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