INTERPRETATION OF 'JOINT EMPLOYER' UNDER THE FAMILY AND MEDICAL LEAVE ACT—NINTH CIRCUIT HOLDS AN AIRLINE THAT CONTRACTED WITH GROUNDS CREWS IS NOT A 'JOINT EMPLOYER' OF THOSE WORKERS UNDER THE FMLA: MOREAU V. AIR FRANCE

摘要

Congress passed the Family and Medical Leave Act ("FMLA") in 1993 to help American workers "balance the demands of the workplace with the needs of families." To that end, the FMLA entitled workers to take up to twelve weeks of unpaid leave each year for medical reasons, such as the birth of a child, or to provide care for a child, spouse or parent with a serious health condition. But Congress limited the impact of this entitlement on small businesses by excluding employers with fewer than fifty workers within a seventy-five-mile area. Then Congress borrowed terms of employment from the Fair Labor Standards Act ("FLSA"), including the concept of "joint employers," to define which employers or employees would fall within the scope of the FMLA. With no FMLA case law on the issue of "joint employment" for guidance, the Ninth Circuit re- cently borrowed analysis from FLSA cases to hold that an airline that contracted out for grounds crew services is not a "joint employer" of those workers and, therefore, does not have enough employees to subject itself to the requirements of the FMLA. However, in drawing its conclusion that the airline is not a joint employer, the court overlooked distinctions between the types of joint employers identified by the FMLA, which are not mentioned by the FLSA. The court should not have relied on analysis from FLSA cases and, instead, should have analyzed the case using the FMLA's descriptions of "primary" and "secondary" employers.