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DOL Expands FMLA Reach to Cover LGBT and Non-nuclear Families

In an Administrator’s Interpretation issued on June 22, 2010, The U.S. Department of Labor (DOL) has "clarified" the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it applies to an employee standing in loco parentis to a child. The result is to significantly expand the universe of caregivers entitled to FMLA leave. As DOL noted in its press release announcing the Administrator’s Interpretation: “the Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

The FMLA entitles an employee up to 12 workweeks of unpaid, job-protected leave for the birth or placement of a ‘son or daughter,’ to bond with a newborn or newly placed ‘son or daughter,’ or to care for a ‘son or daughter’ with a serious health condition. Under the FMLA, the definition of “son or daughter” includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” Current FMLA regulations define in loco parentis as including those adults with day-to-day responsibilities to care for and financially support a child.

The  Administrator’s Interpretation goes further and provides that in loco parentis status must continue to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families.” The guidance indicates that  in loco parentis status is ultimately a factual issue dependent on multiple considerations, but is not limited at whether the person does stand in the role of a parent with financial responsibility. Rather, merely intending to assume parental responsibility, with or without financial support, may be sufficient.
For example, the DOL noted that neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. And it gives the example of divorced and remarried parents whose child will be the ‘son or daughter’ of both the biological parents and the stepparents -- and all four adults would have equal rights to take FMLA leave to care for the child. Another example offered in the guidance advises that a same-sex partner -- who will share in the care for a child with the partner, but who directly lacks the legal relationship with child -- can still be entitled to leave because the employee stands in loco parentis to the child.

If an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. However, according to the DOL, a simple statement asserting that the requisite family relationship exists is all that is needed in these situations. Although this Administrative Interpretation is not binding law, it represents the agency’s interpretation of the FMLA law and regulations which it is charged with enforcing and is likely to be given substantial deference.

Written by Paula Lyons

Supreme Court Allows Employer to Read Employees' Personal Text Messages

In the long awaited case of City of Ontario v Quon, the Supreme Court has ruled that city officials could search the personal text messages sent on text devices owned by the city and provided to certain employees for business use. As explained here, although the city is a government employer and the Court was able to resolve the case on fairly narrow Fourth Amendment grounds, the decision may well reflect the Court's inclination to give public and private employers alike broad discretion to monitor even personal communications made using a computer, pager or other device supplied by the employer.

New York Employers Beware: Task Force at Work!

The New York State Joine Enforcement Task Force on Employee Misclassification has been hard at work and reports that it has uncovered more than 12,000 instances of misclassification and recovered more than $400 million in unpaid wages. See a discussion of state and federal misclassification enforcement efforts here.

Hospitals and Other Healthcare Providers May be Subject to the OFCCP's Affirmative Action and Other Requirements

Many hospitals and other healthcare providers are government contractors, and must comply with various laws and regulations enforced by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), but don't realize it. As a result, they may be failing to satisfy various obligations imposed on government contractors, such as the requirement to have an affirmative action plan. For more on who's covered and what to do about it, see this article.

Supreme Court decides City of Ontario v Quon

See this interesting write-up of the Supreme Court's decision in the text message privacy case, City of Ontario v Quon.

Answers to Employers' Frequently Asked Questions re Health Care Reform's Impact on Employee Benefits.

See this recent Mintz Levin advisory answering some "FAQs" on health care reform's impact on employee benefits.

Health Care Reform Amendments to FLSA Require Break Time and Private Place for Nursing Mothers to Express Milk

Health care reform impacts employers in many significant ways. While the effects of reform on insurance coverage and other requirements have been widely publicized, much less well-understood are various amendments to the Fair Labor Standards Act (FLSA). One such amendment requires employers to provide nursing mothers break time to express milk and, perhaps more significantly for employers, a private and secure place, other than a bathroom, in which to do so. For more on these requirements, which are effective immediately, see Mintz Levin Advisory on Nursing Mothers Break Time and Private and Secure Place to Express Milk .

DOL's "We Can Help" Campaign Bound to Generate Additional Enforcement Activity

On April 1, 2010, the United States Department of Labor launched a new, nationwide marketing campaign, dubbed “We Can Help,” to let workers know how to contact the government with their work-related complaints. The marketing campaign, which is being conducted in several different languages, is intended to connect workers with the Department of Labor. In particular, the campaign seeks to reach employees in low-wage industries perceived as vulnerable to employer exploitation, such as construction, janitorial services, hotel and food services, and home health care.

The “We Can Help” campaign was unleashed with the introduction of a new website (www.dol.gov/wecanhelp), public service announcements featuring actors Esai Morales and Jimmy Smits, public speeches by Secretary of Labor Hilda Solis, and the placement of advertisements using social media such as Facebook, YouTube and twitter. The campaign addresses such topics as workplace rights and how to file a complaint with the DOL’s wage and hour division to recover wages owed. It also enlists the help of worker advocacy groups, including unions, to distribute posters, fact sheets and booklets on how to report complaints. The AFL-CIO announced that it and its affiliates intend to hold forums in union halls, where workers can watch videos about minimum wage and how to track hours worked.

The campaign has already spurred controversy. Specifically, some question the appropriateness of deputizing special interest groups such as unions and other advocacy groups to solicit or initiate complaints. Further, Secretary Solis has clearly stated that the program is intended to cover all workers in the United States, even those who are working here illegally. This does not sit well with those who would prefer that government resources are spent to protect American jobs and those who work in this country legally. Regardless of these criticisms, however, the “We Can Help” campaign seems destined to generate additional enforcement activity.
 
Written by Martha Zackin

2d Circuit Ruling Gives Employers Additional Incentive to Ensure Their Complaint Channels Remain Open and Are Effective in Fact

The Second Circuit Court of Appeals recently reversed an order of summary judgment for JetBlue Airways Corp. on a former employee’s sexual harassment claim in Gorzynski v. JetBlue Airways Corp. This decision underscores the importance of employers ensuring that the avenues available to employees to complain about discrimination and harassment are not only set forth in a policy, but are effective, in fact.

JetBlue’s former employee asserted, among other claims, that her supervisor sexually harassed her by subjecting her to a hostile work environment. JetBlue defended the claim by introducing its written sex harassment policy and invoking the Faragher/Ellerth affirmative defense, contending that it could not be held liable because the employee failed to use its complaint procedure. The employee argued that JetBlue wasn’t entitled to this defense because she did complain about the conduct, albeit to her supervisor who was also the alleged harasser, and because JetBlue didn’t take any remedial action to stop the unwelcome conduct. JetBlue countered by claiming that it was unreasonable to complain only to her harasser when she also could have complained to the human resources department or any member of management, as provided for in the written policy. The court of appeals rejected JetBlue’s argument, stating that each case must be reviewed individually and that summary judgment may not be warranted where “there may be reasons why [a] plaintiff fail[s] to complain to those other than the harasser, who are listed as available.” In this case, for example, the supervisor of the plaintiff’s alleged harasser was apparently “not receptive to receiving employee complaints,” and actually admonished the plaintiff previously for complaining about age discrimination. Thus, it might not have been unreasonable for the plaintiff to complain only to the harasser.

The Second Circuit’s decision in Gorzynski should serve as a wake-up call to employers to ensure that their channels for resolving complaints of discrimination and harassment remain open and effective. In addition, employers that intend to assert the Faragher/Ellerth defense should fully explore the circumstances surrounding the plaintiff’s complaint, particularly, where applicable, a plaintiff’s rationale for not bringing his or her complaint to a particular person, to ensure there are no open issues before moving for summary judgment.

Written by Gregory Bennett

"High Road Contracting Policy" Could Change How Government Contractors Compensate Their Employees

According to an article posted on the DC Crawler website, the “Obama administration is considering a proposal that would heavily favor government contractors that implement policies designed by organized labor.” 
Under current policy, government contracts are awarded based on an analysis of price, past performance, and the ability to meet the contract’s specific requirements.  The proposal, dubbed the “High Road Contracting Policy,” would give preference to labor-friendly contractors that provide its workers with wages and benefits over and above what is required under existing laws.  Specifically, a procurement preference would be given to employers that provide its workers with a “living” wage, to include, at a minimum, health insurance, employer-funded retirement plan, and paid sick days.  Contractors found to have violated labor laws would be restricted, and possibly barred, from being awarded federal contracts.
The Department of Labor would be responsible for examining the labor records of federal contractors, giving it unprecedented power and influence over the federal procurement process.
Critics contend that the proposal would introduce an arbitrary variable into the procurement process and raise the price tag on federal contracts.  Stay tuned.

Written by Martha Zackin

Time running Out for Massachusetts Employers to Comply with Data Security Regs

If you own, license, maintain, store or process the “personal information” of a Massachusetts resident – including that of your own employees – time is getting short for compliance with the Massachusetts data security regulations.  Our colleagues in our Privacy and Security group have published a Privacy and Security Alert regarding the upcoming March 1 deadline.  Also, check the link in the right navigation column of Mintz Levin's Privacy and Security Topics Blog for updates and additional compliance information.

Do the FedEx Cases Portend a Different Approach to Employee/Independent Contractor Analysis?

Here's a link to a short article I wrote for Employment Law 360 discussing the success FedEx has had in establishing that drivers for its FedEx Home subsidiary are independent contractors, not employees, including the D.C. Circuit's favorable decision which focused on the fact that the drivers have an "entrepreneurial interest" in their routes, militating in favor of independent contractor status.

Written by David Barmak

Increased Federal Enforcement of Employment Laws is On the Way

Anyone still listening at the end of President Obama’s first State of the Union Address heard him say the following: “We're going to crack down on violations of equal pay laws, so that women get equal pay for an equal day's work. "

He was serious, and the "crack down," likely won't be limited to equal pay law violations. Significant budget increases have been apportioned to the Department of Labor, the Equal Employment Opportunity Commission, the Occupational Health and Safety Agency, Immigration and Customs Enforcement, and the like, so that these agencies may step up their workplace audit and enforcement efforts.  Be warned.

Written by Martha Zackin