Which Workers Count For FMLA’s 50 Employee Requirement?

By Thomas McKinney

We were recently discussing with a client whether the company she worked for had more than 50 employees for purposes of qualifying for medical leave pursuant to the Family Medical Leave Act (“FMLA”). The issue was that some of the employees had the term partner and the company was not including them because they were “owners” of the company. The Supreme Court set the standard for measuring whether a worker is actually a “owner” of the company in Clackamas v. Wells, 538 U.S. 440 (2003). The Supreme Court held that the worker must be a true owner by looking at the following factors: (1) can the company fire the individual or hire someone else to do the job; (2) does the company set the rules and regulations of the individual’s work; (3) if the individual’s work supervised; (4) whether the individual, and to what extent can influence the company; (5) whether there is a written contract setting forth that the individual is an employee; and (6) whether the individual shares in the profits, losses and liabilities of the company.

If your employer has labeled employees as owners in order to try and avoid falling within the FMLA, please call our NJ Employment Lawyers and we can help evaluate whether you will be covered by the FMLA and have your job protected while you are out on medical leave.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.