We have two separate companies, each with their own TID#, they file separate returns, remitt taxes separately, different bank accounts.
They do share health, dental, Life, LTD plans, and the 401k plan.

However they have the same owners and manage both companies the same.

Each company independently does not qualify for FMLA, but combined they will be subject to FMLA.

Which way would be legally correct to comply with FMLA?

Good question and I'm unsure of the answer (although other responders may be.) I strongly suspect that both companies are subject to the FMLA but there's nothing to be lost by contacting the federal DOL and asking about this.

If you had an employee that worked 20 hours for one company and 21 hours for the other one, you would owe one hour of overtime (see the DOL info about business enterprises).

Without getting expert counsel on FMLA, I would hedge my bets and offer FMLA.

There is no penalty for offering it when you don't have to.

The reverse is not true.

I agree -- get expert help, proceed with caution.

In determining whether two employers are "integrated," the DOL and courts consider the following factors: (1) the degree of common ownership or financial control between the companies; (2) whether the companies have common management; (3) the degree of integration between the operations of the companies; and (4) whether the companies have centralized control of their labor relations.

You may have some or even all of these factors weighing in favor of integration, but the inquiry is necessarily fact-specific and an off-the-cuff answer isn't going to do you any good.

--Cynthia

**Note: the foregoing is provided for educational purposes only and does not constitute legal advice.**

Thank you for your help.

I believe we have all those factors.

I know it's safer to proceed as if we are subject to FMLA, but once we offer it and someone takes it, we are pretty much acknowledging an integrated empolyer situation and must continue to offer it across the board to each employee.

Thanks to all!