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Independent contractors and FMLA liability


The federal Family Medical Leave Act (FMLA) generally protects employees from losing their job due to a qualifying leave of absence. Examples include when employees give birth, suffer a serious medical condition or need to take time off in order to care for a newly born or adopted child or to care for a loved one who is gravely ill.

However, FMLA protections generally only extend to full-time employees. It is uniquely challenging for freelancers and independent contractors to succeed on FMLA claims due to nuanced definitions of who is legally considered an employer and who is legally considered an employee.

Only a direct employer or a joint employer may be held liable for violations of the FMLA. As a result, even though an independent contractor may directly complete work in the service of a given company, if that company does not issue his or her paycheck, that company is not technically an employer for the purposes of the FMLA in most cases.

The two caveats to this rule allow for an independent contractor to hold their work-providing company responsible for FMLA infractions if one or both of these conditions applies:

  • The company supplying work but not paying the independent contractor is considered a joint employer along with the staffing agency who is generally considered the employer of a given independent contractor
  • The independent contractor could be considered an employee under the company who provides him or her with work

In essence, this issue is complicated because independent contractors may only hold their employers accountable for FMLA infractions, and the company that provides them with work is not always considered an employer. Given the complexity of the law related to this issue, it may be helpful consult an experienced attorney with any questions you have regarding your unique FMLA circumstances as an independent contractor.

Source: Human Resource Executive Online, "Do Employers Have FMLA Obligations to Independent Contractors?" Keisha-Ann G. Gray, Dec. 13, 2012

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