Florida/Georgia Personal Injury & Workers Compensation

...may be deemed to share control of the employee, 10  directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 825.106(a). Notwithstanding the existence of the timeshare agreement, Magic Carpet and RDV did not “share” Morrison’s service....

...933, 6 L.Ed.2d 100 (1961); Aimable, 20 F.3d at 439. To assure the protection of employees, the FMLA's statutory scheme makes it clear that a worker can be economically dependent on, and thus employed by, more than one entity at the same time. See 29 C.F.R. §§ 825.104, 825.106....

...Suarez, made the final decision with respect to Plaintiff's requests for leave and the ultimate decision to terminate Plaintiff. As such, Plaintiff has failed to demonstrate an integrated employer relationship in this case. C. The Joint Employment Theory The issue of joint employment liability is addressed in 29 C.F.R. § 825.106, which provides, in part, that single employer status may attach to separate employers where an employer exercises some kind of substantial control over the work of the other employer's employee. Section 825.106(a) sets forth the three situations where separate employers may constitute a joint employer of an employee....

...letely 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. 29 C.F.R. § 825.106(a)....

...loyer for purposes of the FMLA. Id. However, in situations such as the instant case, the regulations provide that the two entities will be viewed as a single employer of an employee provided they meet either the "`joint employment' test discussed in § 825.106, or the `integrated employer' test discussed in paragraph (c)(2) of this section." Id....

...(1) the employers have an agreement to share or interchange an employee's services; (2) one employer acts directly or indirectly in the interests of the other employer; or (3) the employers are deemed to share control of the employee. See 29 C.F.R. § 825.106(a)....

...ing calendar year; (ii) includes (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer. . . . 29 U.S.C. § 2611(4)(A). The facts of this case bring it within the purview of 29 C.F.R. section 825.106 ("Section 825.106"), which addresses "joint employment," as follows: "[w]here two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA." 29 C.F.R. § 825.106(a)....

...ty in the joint employer context. While a secondary employer is still an employer of the employee, it does not have the same FMLA obligations as the primary employer. Salgado v. CDW Computer Centers, Inc., 1998 WL 60779 at *3 (N.D.Ill. Feb.5, 1998). Section 825.106 addresses the distinction between primary and secondary employers in the context of a joint employer relationship, as follows: In joint employment relationships, only the primary employer is responsible for giving required notices to its employees, providing FMLA leave, and maintenance of health benefits....

.../responsibility to hire and fire, assign/place the employee, make payroll, and provide employment benefits. For employees of temporary help or leasing agencies, for example, the placement agency most commonly would be the primary employer. 29 C.F.R. § 825.106(c); see also Moreau v. Air France, 356 F.3d 942, 946 (9th Cir. 2004) ("The regulations distinguish between the `primary employer' and the `secondary employer';" citing 29 C.F.R. § 825.106(c)). Thus the Court will examine the factors set out in Section 825.106 to determine whether Nokia was Mahoney's primary employer. [30] *1255 A. Section 825.106 Factors 1) Authority/responsibility to hire and fire Nokia played no role in Spherion's decision to hire Mahoney....

...These factors demonstrate that Spherion was Mahoney's primary employer, and the fact that Mahoney was able to share in a single Nokia bonus program does not compel a contrary conclusion. 5) Other considerations In addition to those factors listed in Section 825.106, the Court finds that a number of other considerations are relevant in this case....

...t at Nokia; (2) Nokia did not recognize Mahoney as a Nokia employee, and Nokia employees repeatedly emphasized that Nokia did not employ him; and (3) Mahoney admits that Nokia never directly hired him. Finally, the Court notes that subsection (c) of Section 825.106 contains what appears to be almost a presumption in favor of finding that Spherion was Mahoney's primary employer. The last sentence of that subsection states that "[for employees of temporary help or leasing agencies . . . the placement agency most commonly would be the primary employer." 29 C.F.R. § 825.106(c). Clearly, Spherion is a temporary help or leasing agency, of which Mahoney was an employee, and Section 825.106 recognizes that in most such situations, Spherion would thus be Mahoney's primary employer. B. Section 825.106(e) Mahoney's next argument is that even if Nokia is only considered a secondary employer, Nokia is liable because Section 825.106(e) imposes the responsibility on secondary employers to comply with the prohibited acts provisions of the FMLA. Subsection (e) of Section 825.106 provides, in relevant part, that *1257 [a] secondary employer is also responsible for compliance with the prohibited acts provisions with respect to its temporary/leased employees, whether or not the secondary employer is covered by the FMLA (see § 825.220(a)). The prohibited acts include prohibitions against interfering with an employee's attempt to exercise rights under the Act, or discharging or discriminating against an employee for opposing a practice which is unlawful under FMLA. 29 C.F.R. § 825.106(e). The Court rejects Mahoney's argument, because it does not appear that subsection (e) applies to this case. First, subsection (e) begins by stating that "job restoration is the primary responsibility of the primary employer." 29 C.F.R. § 825.106(e)....

...This conclusion is strengthened when one examines the language of 29 C.F.R. section 825.214, which specifically addresses the rights of employees upon returning to work from FMLA leave. That section lists an employee's rights, and specifically refers to Section 825.106(e) "for the obligations of joint employers," which can only reasonably be interpreted to mean "the obligations of joint employers when an employee returns to work from FMLA leave....

...ling to accommodate him would bring that language into direct conflict with subsection (c), which specifically states that "only the primary employer is responsible for giving required notices to its employees, [and] providing FMLA leave." 29 C.F.R. § 825.106(c) (emphasis supplied). The Court simply cannot read the language of this regulation in a manner that would give rise to such an open and obvious conflict. Therefore, the Court finds that Section 825.106(e) does not support Mahoney's claim. IV. Conclusion Spherion, not Nokia, was Mahoney's primary employer, and therefore, under Section 825.106(c), Spherion, not Nokia, bore responsibility for addressing any request Mahoney made for an accommodation under the FMLA. Further, Section 825.106(e) does not place the responsibility on Nokia as Mahoney's secondary employer to accommodate him....

...City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). [30] The Court notes that it was unable to find caselaw providing any insight into the inter-pretation and/or application of these elements. [31] Indeed, the only cases the Court was able to find in which a citation to 825.106(e) appears were those in which the rights of an employee upon returning from FMLA leave were at issue. See Harrell v. U.S. Postal Serv., 445 F.3d 913 (7th Cir.2006); Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238 (6th Cir.2004); Cline v. Home Quality Mgmt., Inc., 2004 WL 746291 (S.D.Fla. Mar.18, 2004). Even those cases, however, do not discuss Section 825.106(e), and instead simply quote 29 C.F.R. section 825.214 which, in turn, directs the reader to Section 825.106(e)....

...250, 254-55, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000); Babbitt v. Sweet. Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 694, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995), and this canon of construction reinforces the Court's conclusion that the language in Section 825.106(e) upon which Mahoney relies only applies in situations involving "job restoration."