[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.107]



[Page 750]

 

                             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.  825.107  What is meant by ``successor in interest''?



    (a) For purposes of FMLA, in determining whether an employer is 

covered because it is a ``successor in interest'' to a covered employer, 

the factors used under Title VII of the Civil Rights Act and the Vietnam 

Era Veterans' Adjustment Act will be considered. However, unlike Title 

VII, whether the successor has notice of the employee's claim is not a 

consideration. Notice may be relevant, however, in determining successor 

liability for violations of the predecessor. The factors to be 

considered include:

    (1) Substantial continuity of the same business operations;

    (2) Use of the same plant;

    (3) Continuity of the work force;

    (4) Similarity of jobs and working conditions;

    (5) Similarity of supervisory personnel;

    (6) Similarity in machinery, equipment, and production methods;

    (7) Similarity of products or services; and

    (8) The ability of the predecessor to provide relief.

    (b) A determination of whether or not a ``successor in interest'' 

exists is not determined by the application of any single criterion, but 

rather the entire circumstances are to be viewed in their totality.

    (c) When an employer is a ``successor in interest,'' employees' 

entitlements are the same as if the employment by the predecessor and 

successor were continuous employment by a single employer. For example, 

the successor, whether or not it meets FMLA coverage criteria, must 

grant leave for eligible employees who had provided appropriate notice 

to the predecessor, or continue leave begun while employed by the 

predecessor, including maintenance of group health benefits during the 

leave and job restoration at the conclusion of the leave. A successor 

which meets FMLA's coverage criteria must count periods of employment 

and hours worked for the predecessor for purposes of determining 

employee eligibility for FMLA leave.