In Cuff v. Trans States Holdings, Inc., No. 13-1241 (7th Cir. 2014), the Seventh Circuit Court of Appeals (the “Court”) was faced with the question of whether the plaintiff, Darren Cuff (“Cuff”), who was on the payroll of Trans States Airlines (“Trans States”), was covered by the Family and Medical Leave Act (the “FMLA”).
The Court noted that, in this case, United Airlines contracts with other firms for regional air services under the “United Express” brand. Trans States Holdings (“Holdings”) is one of United’s suppliers. It owns two air carriers: Trans States and GoJet Airlines (“GoJet”). The FMLA applies only if the employer has at least 50 employees within 75 miles of a given worker’s station. 29 U.S.C. §2611(2)(B)(ii). Cuff worked at O’Hare Airport in Chicago. The parties agree that in January 2010, when it fired Cuff after he took leave despite its denial of his request under the FMLA, Trans States had 33 employees at or within 75 miles of O’Hare, while GoJet had 343 and Holdings had none. Cuff contends that he worked for Trans States and Go-Jet jointly.
The Court also noted that the Department of Labor has issued a regulation, providing that workers are covered by the FMLA when they are jointly employed by multiple firms that collectively have 50 or more workers. 29 C.F.R. §825.106(a). A separate regulation adds that two or more firms may be treated as a single employer when they operate a joint business. 29 C.F.R. §825.104(c). Cuff invoked both of these provisions. The two lead factors identified by regulation §825.106(a), in determining whether there is joint employment, is whether “there is an arrangement between employers to share an employee’s services” and whether “one employer acts directly or indirectly in the interest of the other employer in relation to the employee”. The Court found that, in Cuff’s case, both questions are answered “yes,” and it concluded that Cuff was a joint employee of at least Trans States and GoJet, if not of Holdings too. Combining those entities allows Cuff to meet the 50 workers threshold, so that Cuff is covered by the FMLA.