This FMLA case gives the wrong impression. Cuellar v. Keppel Amfels, LLC, No. 12-40165 (5th Cir. September 9, 2013). In this case, the company “leased” workers from a staffing agency. When one worker went out on maternity leave, the company replaced her. (The staffing agency was the primary employer and provided the leave.) When she was done with her leave, the company failed to call the staffing agency to ask for her back. Consequently, she was not reinstated to her old position. In her inevitable lawsuit, the worker claimed the company and the staffing agency had a standard practice: the staffing agency did not send any workers out if the company didn’t ask for them. The worker argued through this practice, the company interfered with the staffing agency reinstating her at the company. The court disagreed. FMLA regulations limit the possible claims against a “secondary employer” that obtains workers from a “primary employer,” such as a staffing agency. The secondary employer does not have the responsibility to pursue reinstatement for the employee.
This case makes the company’s FMLA duties seem easy, BUT the case on appeal did not question whether the company and the staffing agency were joint employers or whether the company was the secondary employer and the staffing agency the primary employer. The case also did not include the staffing company as a defendant. All the issues that will embroil you in litigation were left on the cutting-room floor when the worker developed her appeal. When you lease your workers, watch that lease agreement, as well as your pattern of dealing with the staffing agency.