Ninth Circuit Clarifies Successor Liability Under the FMLA
As more mergers and acquisitions take place in the retail industry, acquiring companies need to be mindful of whether they are successor employers for determining liability under the FMLA. In Sullivan v. Dollar Tree Stores, 623 F.3d 770 (9th Cir. 2010), the Ninth Circuit articulated eight factors which are critical to determining whether a company is a successor employer under FMLA, including: (1) substantial continuity of the same business operations, (2) use of the same plant, (3) continuity of the workforce, (4) similarity of jobs and working conditions, (5) similarly of supervisory personnel, (6) similarity of machinery, equipment and production methods, (7) similarity of products or services, and (8) the ability of the predecessor to provide relief.
In the case, the Ninth Circuit found that although both employers were in the retail business operations, this was too general to demonstrate a substantial continuity giving rise to liability.
