[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR825.105]

[Page 751-752]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents
 
Subpart A_What is the Family and Medical Leave Act, and to Whom Does It 
                                 Apply?
 
Sec. 825.105  In determining whether an employer is covered by FMLA, 

what does it mean to employ 50 or more employees for each working day 
during each of 20 or 
          more calendar workweeks in the current or preceding calendar 
          year?

    (a) The definition of ``employ'' for purposes of FMLA is taken from 
the Fair Labor Standards Act, Sec. 3(g). The courts have made it clear 
that the employment relationship under the FLSA is broader than the 
traditional common law concept of master and servant. The difference 
between the employment relationship under the FLSA and that under the 
common law arises from the fact that the term ``employ'' as defined in 
the Act includes ``to suffer or permit to work''. The courts have 
indicated that, while ``to permit'' requires a more positive action than 
``to suffer'', both terms imply much less positive action than required 
by the common law. Mere knowledge by an employer of work done for the 
employer by another is sufficient to create the employment relationship 
under the Act. The courts have said that there is no definition that 
solves all problems as to the limitations of the employer-employee 
relationship under the Act; and that determination of the relation 
cannot be based on ``isolated factors'' or upon a single characteristic 
or ``technical concepts'', but depends ``upon the circumstances of the 
whole activity'' including the underlying ``economic reality.'' In 
general an employee, as distinguished from an independent contractor who 
is engaged in a business of his/her own, is one who ``follows the usual 
path of an employee'' and is dependent on the business which he/she 
serves.
    (b) Any employee whose name appears on the employer's payroll will 
be considered employed each working day of the calendar week, and must 
be counted whether or not any compensation is received for the week. 
However, the FMLA applies only to employees

[[Page 752]]

who are employed within any State of the United States, the District of 
Columbia or any Territory or possession of the United States. Employees 
who are employed outside these areas are not counted for purposes of 
determining employer coverage or employee eligibility.
    (c) Employees on paid or unpaid leave, including FMLA leave, leaves 
of absence, disciplinary suspension, etc., are counted as long as the 
employer has a reasonable expectation that the employee will later 
return to active employment. If there is no employer/employee 
relationship (as when an employee is laid off, whether temporarily or 
permanently) such individual is not counted. Part-time employees, like 
full-time employees, are considered to be employed each working day of 
the calendar week, as long as they are maintained on the payroll.
    (d) An employee who does not begin to work for an employer until 
after the first working day of a calendar week, or who terminates 
employment before the last working day of a calendar week, is not 
considered employed on each working day of that calendar week.
    (e) A private employer is covered if it maintained 50 or more 
employees on the payroll during 20 or more calendar workweeks (not 
necessarily consecutive workweeks) in either the current or the 
preceding calendar year.
    (f) Once a private employer meets the 50 employees/20 workweeks 
threshold, the employer remains covered until it reaches a future point 
where it no longer has employed 50 employees for 20 (nonconsecutive) 
workweeks in the current and preceding calendar year. For example, if an 
employer who met the 50 employees/20 workweeks test in the calendar year 
as of August 5, 1993, subsequently dropped below 50 employees before the 
end of 1993 and continued to employ fewer than 50 employees in all 
workweeks throughout calendar year 1994, the employer would continue to 
be covered throughout calendar year 1994 because it met the coverage 
criteria for 20 workweeks of the preceding (i.e., 1993) calendar year.