I have a friend who's tried to commit suicide a couple of times. He works at a fast food franchise that insists on scheduling him during the only time he can go visit with a counselor.

I know FMLA only requires places with 50 or more employees - do franchises bypass this requirement? And if not, does the FMLA protect visits for mental health reasons?

We're in Arkansas if that makes any difference.


Arkansas does not appear to have its own version of the FMLA. Whether or not the FMLA applies to your friend's employer is a complex question related to other local businesses that may or may not be integrated with the franchise within which he works. It would require the knowledge of a local labor attorney and knowledge of the business structure of the franchisee to make a determination.

The Family and Medical Leave Act (FMLA - Department of Labor site) applies to employers with 50 or more employees within 75 miles of the employee's worksite.

Generally, franchise operations are independent businesses and the individual business would need to meet the employee count threshold for its employees to be covered.

However, there is the concept of an "integrated employer." The Labor Department sometimes groups smaller businesses as an integrated employer and this will cause the FMLA to apply to seemingly independent businesses with fewer than 50 employees.

The Department of Labor Wage and Hour Division lays out four factors to determine if the businesses are integrated:

  1. interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment;
  2. common management, common directors and boards;
  3. centralized control of labor relations and personnel, i.e., hire and fire employees; and,
  4. common ownership and financial control

They further state:

A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. All four criteria need not be present in all cases, but the Equal Employment Opportunity Commission, which administers the Civil Rights Act, considers the first three criteria to be the most important, with centralized control of labor relations to be most critical of these three.

A fast food franchise would not be subject to FMLA regulations because the franchisor is a large company. However, many fast food franchises are part of larger, local businesses such as restaurant groups that may be subject to the regulations.

An example of this would be Christopher Harold who owned Sofono, Inc, a company established to own three Domino's Pizza franchises. In Cousin v. Sofono, an employee sued to recognize that the FMLA applied to these businesses because they were an "integrated employer." There is an article in Business Management Daily that discusses the case and the appeal of the case can be found here.

Whether or not the fast food franchise where your friend works would qualify as an integrated employer with other fast food franchises is subject to an examination of the business structure of the individual employers. If the franchise is truly a stand-alone business with fewer than 50 employees then the FMLA would not apply. In the case of the Domino's pizza franchise they were deemed to be integrated because they were the same franchise licensees of the same franchisor (Domino's) and they had a common workers' comp policy.

Do be aware that the 50 employee limit is not a permanent employee threshold. From The Employer's Guide to The Family and Medical Leave Act:

A private-sector employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year.

The example they give in the guide is an employer that hires temporary, seasonal workers causing the employer to qualify under FMLA.

The integrated employer test and how to count employees can be found in the regulations regarding FMLA.

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