Joint Employment and Successor in Interest

Joint Employment

A determination of whether a joint employment relationship exists is not based on any single criterion; rather the entire relationship must be considered.

A joint employment relationship will generally be considered to exist where:

• There is an arrangement between employers to share an employee's services or to interchange employees;
• One employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
• The employers are in some way associated 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.

Factors considered in determining which employer is the primary employer in a joint employment relationship include the authority or responsibility to:

• Hire and fire;
• Make payroll; and
• Provide employment benefits.

For more information concerning joint employers' responsibilities to reinstate an employee after FMLA leave, see Employee Reinstatement – Joint Employment.

Please contact your nearest Wage and Hour Division office if you have additional questions about joint employment and employer coverage.

For more information on this aspect of the FMLA, see the FMLA regulations: § 825.106

Successor in Interest

A determination of whether or not a "successor in interest" exists is not based on any single criterion; rather the entire circumstances must be considered.

Whether or not the successor has notice of the employee's claim to FMLA leave is not a consideration for purposes of the FMLA. Such notice may be relevant, however, in determining successor liability for violations of the predecessor.

Factors to be considered in establishing successor in interest for coverage include:

• Substantial continuity of the same business operations;
• Use of the same plant;
• Continuity of the workforce;
• Similarity of jobs and working conditions;
• Similarity of supervisory personnel;
• Similarity in machinery, equipment and production methods;
• Similarity of products or services; and
• The ability of the predecessor to provide relief.

Please contact your nearest Wage and Hour Division office if you have additional questions about successor in interest and employer coverage.

If you believe that the employer is covered as a joint employer or successor in interest, or if you want to learn about determining employee eligibility for covered employers, continue to Employee Eligibility.

For more information on this aspect of the FMLA, see the FMLA regulations: § 825.107

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