CWS 3.0: November 20, 2013


Contingent Workers and the FMLA

A recent ruling out of the Fifth Circuit Court of Appeals affirms that companies that use temporary workers provided by a staffing provider may be obligated to accept temps coming back from leave taken under the Family and Medical Leave Act. But there are exceptions.

Jessica Cuellar was a temporary employee assigned to Keppel Amfels by Perma-Temp, a staffing firm. Keppel Amfels builds and repairs offshore drilling platforms and marine vessels at the Port of Brownsville, Texas. About half of its local work positions are staffed by temporary workers.

Cuellar began her assignment in June 2007, and in August 2008 went on maternity leave upon going into labor. Keppel Amfels terminated her assignment three days later and found a replacement worker on its own.

Cuellar filed suit against Keppel Amfels, asserting that Keppel Amfels (1) interfered with her Family and Medical Leave Act rights by “convincing” Perma–Temp not to seek her reinstatement, and (2) retaliated against her for exercising her FMLA rights.

The district court, however, found no evidence that Keppel Amfels “acted with a discriminatory animus by terminating Cuellar's assignment,” dismissing Cuellar's claims. Cuellar then appealed the dismissal of her interference claim.

The Fifth Circuit Appeals Court found that only the primary employer, Perma-Temp, in this case, is responsible for providing FMLA leave. However, a secondary employer does bear a conditional burden: it is responsible for accepting an employee returning from FMLA leave if it continues to utilize the staffing firm to fill that position, and the agency chooses to place the employee with the secondary employer.” Because Keppel replaced Cuellar on its own and did not ask Perma-Temp to fill the position, neither entity was found to have broken their FMLA obligations.

While companies that use staffing firms to fill positions do have some obligations under the FMLA, in this case, both companies were cleared of any wrongdoing.


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