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i cant get FMLA and the ption is to terminate me and rehired after birth Florida

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  • i cant get FMLA and the ption is to terminate me and rehired after birth Florida

    I been working for this company through a temp agency since Nov 2011. I just got hired by the company. I was talking to HR and ask if i could take my 12 week with FMLA after i give birth on Jan 2013. He said that i didn't qualify for FMLA because by the time i take my leave i only been working for the company only 6 months as a regular employee. His option is to terminate my employment on jan 2013 and then rehired me again. I thought i was eligible because this is a case of Joint Employment. I work half year with the temp agency and half as a regular employee. Does FMLA applies?
    Thank You.

  • #2
    I have this in a reference:

    Problems can arise when an employee moves from a temporary position on an agency’s payroll to a regular position on the employer’s payroll. Prior service for the employer through a temporary agency might be overlooked, either in calculating the one-year-of-service requirement or the 1,250-hour requirement. HR and line managers must be aware that prior service and hours worked by an individual through a temporary-staffing agency on the employer’s premises must be taken into account in determining service and hours eligibility under the FMLA.
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    • #3
      Your temp time should count if you were working continuously. If there were gaps in service, it may not be enough to meet the 12 month requirement. Do you have/wil you have the 1250 hours?

      Share there sections with your employer if they balk at covering you

      § 825.106 Joint employer coverage.
      (a) Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:

      (1) Where there is an arrangement between employers to share an employee's services or to interchange employees;

      (2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or,

      (3) Where the employers are not completely disassociated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.

      (b)(1) A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship is to be viewed in its totality. For example, joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


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