Human Resource Blog

FMLA and Reapplying

Hi, I am a first time manager, sometimes HR who needs information! I have 2 questions: First our company is currently under 50 employees and has been for several months. I understand that a company must be under 50 for a year to be exempt from FMLA. Do we need to notify anyone that we are under 50 or after a year can we just not offer FMLA?  2) Also, our ownership is being restructured and they are considering asking everyone to reapply for the jobs they have now. Are there any legalities to this? Would any employee not rehired then be eligible for unemployment? Thanks so much for any information!

We are very happy to help you with all your HR questions!

1) There is no one that you need to inform, when your number of employees drops below 50. You can simply stop offering FMLA after a year. However, be aware that it is not 50 full-time employees. Even part-time employees count towards the 50 total.

2) Many companies require that every employee reapply for their job when the company changes hands. The primary legal issue is that usual hiring restricitons apply, because employers who choose this route are very often the targets of lawsuits for illegal discrimination. You are limited in the questions that you can ask employees in rehire interviews, and the information that you can consider in this decision. (Suppose you know that Emily had breast cancer 4 years ago, or that Johns wife has had a stroke and requires a lot of care or that Cindy is pregnant, or trying to get pregnant. That information cannot be a factor in your decision to rehire these employees. Considering that information is illegal discrimination under federal law.) You should document the objective job-related reasons that you choose to rehire certain employees over others, such as eduction, skills or experience.

Any employees who are not rehired have essentailly be laid off and are entitled to unemployment benefits. However, any employees laid off during this process are likely to qualify for unemployment anyway, whether they were asked to reapply or not.

The primary benefit in having employees reapply for their jobs is that it sends a clear message to employees that the company is under new ownership, and policies  — and perhaps performance standards — will change.