United States: Company Not Required To Reinstate Temporary Employee After FMLA Leave Of Absence Where Temp Agency Did Not Request That Employee Be Reinstated

In Cuellar v. Keppel Amfels LLC, the Fifth Circuit Court of Appeals addressed the relatively novel issue of whether a company has an obligation to reinstate a temporary employee returning from FMLA-covered leave. Jessica Cuellar was assigned by a staffing agency Perma-Temp (the "primary employer") to work at Keppel (the "secondary employer") in Texas. Cuellar went on a maternity leave, and Perma-Temp assigned another temporary employee to work at Keppel. After having her baby, Cuellar sought reinstatement at Keppel. Perma-Temp did not request Keppel to reinstate Cuellar and Keppel continued to use the services of the temporary employee who replaced Cuellar. Accordingly, Keppel denied Cuellar's request for reinstatement and she sued Keppel for violation of the FMLA. Dismissing the lawsuit, the court explained that Perma-Temp was the primary employer, and only the primary employer is responsible for providing FMLA leave to a temporary employee like Cuellar and restoring her to the job. A secondary employer like Keppel is only responsible for accepting a temporary employee back from FMLA leave if: 1) Keppel continued to use the services of a temporary employee from the temporary agency; and 2) the temporary agency chooses to place the employee returning from leave with the secondary employer. Here, Perma-Temp did not request Keppel to reinstate Cuellar. Accordingly, Keppel had no obligation under the FMLA to reinstate Cuellar from her FMLA leave.

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