My wife and I live in Pennsylvania. My wife works for a large company with over 50 employees (company A) on a fixed-term contract in Delaware. She is essentially leased to company A by a 3rd party consulting agency in PA (company B), who's sole interaction with her is payroll processing. All direction and work-related interaction is from her supervisor at company A.

She just informed the HR dept at company A that she will need to take maternity leave in early May, at which she will have been working continuously for well over 1 year (& over 1250 hours).

Company A said that her contract will be terminated when she goes out on maternity leave.

Does this constitute unfair dismissal?

My wife and I live in Pennsylvania. My wife works for a large company with over 50 employees (company A) on a fixed-term contract in Delaware. She is essentially leased to company A by a 3rd party consulting agency in PA (company B), who's sole interaction with her is payroll processing. All direction and work-related interaction is from her supervisor at company A.

She just informed the HR dept at company A that she will need to take maternity leave in early May, at which she will have been working continuously for well over 1 year (& over 1250 hours).

Company A said that her contract will be terminated when she goes out on maternity leave.

Does this constitute unfair dismissal?

It all depends upon the contract. If the contract is with Company B to supply a worker for XYZ duties, then Company B can send another person to do the same thing.

Your wife works for Company B, how many employees to they have in a 75 mile radius?

She is in a professional role providing marketing consulting work so it is doubtful they could immediately send another 'body' without a search.

Size of company B--they're smallish with 10-12 known FTEs at the main office. Number of contractors they have placed in the field is unknown but we're trying to find out.

Most likely, the two companies would be found to be "joint employers" in this situation (but it is a factual issue that requires some investigation, so it is worth consulting with someone who knows the law in this area). As already noted, the staffing company has to have 50 employees to be covered by the FMLA -- but all the employees it contracts out to others are counted toward that 50.

If they are joint employers, the staffing company is most likely the "primary" employer that has the obligation to give FMLA notices. The staffing company also has the obligation to comply with the worker's job restoration rights. Under the FMLA regulations, if a company that uses employees from a staffing company continues to use employees from the staffing company for the position that the employee filled before going out on leave and the staffing company wants to place that employee with that company, the company has to return the worker to the original position. If, however, the company terminates its contract with the staffing company, or no longer uses employees from the staffing company for that position, or the staffing company wants to send the employee to a different company, then it does not have to. (The exact words of the regulation are: "The secondary employer is responsible for accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency, and the agency chooses to place the employee with the secondary employer.")

You can get more information here: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.106.htm.

I don't know enough of the facts of your wife's situation to say if this is unfair dismissal. You could try contacting the US Department of Labor to see if they can give you an opinion.

--Cynthia
www.worklifelaw.org

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

Your wife should also find out from B what their plans for her are when she goes on leave. She may stay employed with them and reassigned when able to return. She should also find out if the contract is being terminated completely or whether it is just the contract with her that is. If A decides they no longer need such services as of May, you have a very different situation than if they are just going with someone else because she is taking leave.