Who Is a “Son or Daughter” Under the FMLA?

The U.S. Department of Labor issued a clarification today of  the definition of “son or daughter” under the federal Family Medical Leave Act (FMLA).  We already know that employees can use their FMLA-protected leave to care for a newborn or newly placed child, or to care for a child with a serious health condition.  The issue is whether an employee can use FMLA protected leave for the placement of a child or to care for a child for whom they have no legal and/or biological relationship and for whom they provide no financial support.  Think stepparents, grandparents, aunts and uncles, or any adult who has assumed the responsibilities of a parent for a child.

The Department of Labor says yes: employees get FMLA-protected leave to care for a child for whom the employee has assumed parental responsibilities:

For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

Children can have more than two parents for the purposes of this definition.  For example, each parent and step parent could be entitled to FMLA to care for a child, if the facts show that each has assumed parental responsibilities.  

This clarification is great for employees who don’t have traditional nuclear families.  While it may seem to make things more complicated for employers who are concerned with FMLA abuse, it also streamlines the inquiry, because  “[a] simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”  Administrator’s Interpretation No. 2010-3.

Getting Paid for Getting Dressed

The U.S. Department of Labor recently issued a new interpretation of donning and doffing requirements under the Fair Labor Standards Act, bringing the Department’s interpretation in line with recent court decisions.  The issue is whether employees should be paid for putting on and taking off clothing before and after work.  You can read Interpretation No. 2010-2 in all its scintillating detail here: http://www.dol.gov/whd/opinion/adminIntrprtn/FLSA/2010/FLSAAI2010_2.pdf

The gist is that donning and doffing protective equipment that is required by law before or after a shift may be compensable, as can waiting time between donning and working.  To the extent that this new Interpretation contradicts a 2002 opinion letter from the Department of Labor on this topic, we are instructed no longer rely upon the opinion letter.

Breastfeeding Moms at Work

The Fair Labor Standards Act (FLSA) was recently amended to allow nursing mothers to take unpaid breaks to express breast milk at work.  This amendment is codified at 29 U.S.C. 207(r)(1).  It requires an employer to provide a “reasonable” break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.  It also requires the employer to provide a place other than a bathroom that is shielded from view and free from intrusion from co-workers and the public which may be used by an employee to express breast milk. 

Employers with fewer than 50 employees are not subject to the statute’s requirements if they would impose an “undue hardship” by causing the employer significant difficulty in relation to size, financial resources, nature, or structure of the employer’s business. 

The amendment to the FLSA does not preempt any state laws that provide greater protection.  Washington State, for example, has a law codified as  RCW 43.70.640 that encourages (but does not require) employers to adopt a breastfeeding policy and provide a sanitary, private location for expressing beast milk and refrigerated storage, which is explained in an article published by LegalVoice called “Breastfeeding in the Washington Workplace.” 

Washington State also has a law that went into effect in July of 2009 as an amendment to RCW 49.60.215 that allows mothers to breastfeed their babies in places of public accommodation (stores, theatres, restaurants, gyms, libraries, hotels, shopping malls, buses, parks, government buildings, museums, etc.).  In places of public accommodation, the proprietor cannot require a breastfeeding woman to go to a particular place or cover up herself or her baby.  However, the Washington State law does not require employers to allow mothers to bring their babies to work and it would not apply in the workplace unless the workplace met the definition of a “place of public accommodation.”  For example, if a mother who worked at a museum was visiting a museum gallery with her baby on her lunch break, she would be allowed to nurse her baby in the gallery just like any other patron.   

The Washington State Human Rights Commission and the Breastfeeding Coalition of Washington have developed a “Guide to Breastfeeding and Washington State Nondiscrimination Laws” that provides more details on the public accommodation statute.

To date, the U.S. Department of Labor has not adopted regulations addressing the new law on taking breaks to express breast milk, so there is no official guidance on how often breaks can be, how long they can last, or how private the area provided for expressing breast milk must be.  For assistance on applying the new law to a particular situation, it may help to contact an attorney who has experience with the FLSA and an understanding of the issues relating to breastfeeding.

________________________________________________________________________

The information in this post is not legal advice and should not be relied on for any purpose.  Additionally, it may have become outdated after it was posted on May 19, 2010.

WASHINGTON STATE WAGE AND HOUR FAQ’S

The Washington State Department of Labor & Industries recently released a fact sheet covering frequently asked questions (FAQs) about pay requirements, deductions from pay, hiring a teen worker, employee uniforms, and employee access to personnel files.

The fact sheet is a succinct description of the laws with links to more detailed fact sheets on some of the subjects that are covered.  It is a good starting point for questions about these issues, but it is for informational purposes only and should not be used for legal advice.  It could also be affected by the terms of an employment contract or collective bargaining agreement.

In reviewing information about employment laws, keep in mind that there are both state and federal laws that cover each of these topics.  Most employees are covered by both state and federal law.  As a result, the guidance provided by the Washington State Department of Labor & Industries generally would not apply to employees in other states.

The link for the fact sheet is http://www.lni.wa.gov/IPUB/700-150-000.pdf.

 The information in this post was prepared on March 26, 2010.  Please keep in mind that events may have occurred after the posting that render it inaccurate.

Personal Liability for Failure to Pay Wages

A recent Washington State Court of Appeals case, Moore v. Blue Frog Mobile, Inc., serves as a timely reminder that certain individuals associated with an employer can be held personally liable if employees’ wages are not paid by the employer.  As the Moore case points out, RCW 49.52.050 and RCW 49.52.070 authorize criminal and civil penalties when an officer, vice principal, or agent of an employer (or an elected public official) “Willfully and with intent to deprive the employee of any part of his wages, shall pay an employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance or contract.” RCW 49.52.050(2).  Any officer, vice principal or agent who violates this statute can be held liable in a civil action for twice the amount of the unpaid wages, along with attorneys’ fees and costs under RCW 49.52.070. 

 In the Moore case, the CEO testified that he believed that Mr. Moore, who was the former Chief Operating Officer (COO) of the company, had breached the non-disparagement portion of a separation agreement by submitting a declaration in a lawsuit between the company and a third party, and terminated Mr. Moore’s severance payments.  Mr. Moore sued the company, the CEO and two board members.  He subsequently settled with the two board members, obtained a stipulated judgment against the company, and prevailed on summary judgment against the CEO.  The CEO appealed.  The case on appeal focused on whether the CEO and Mr. Moore had a bona fide dispute regarding the wages because Mr. Moore would not be entitled to double damages if their dispute was bona fide.  The Court of Appeals reversed the summary judgment and sent the case back to the trial court to be determined by a jury. 

 Besides serving as a reminder that certain individuals can be held personally liable for the failure to pay wages, the Moore case also serves as a reminder that “wages” is a very broad term, and includes compensation such as severance payments in addition to salary.  Though not referenced in the Moore case, other cases have applied the term “wages” to include payments to employees such as commissions and contract ratification bonuses.  However, there are limits to what the courts consider to be wages, as illustrated by Byrne v. Courtesy Food, Inc. where the Washington State Court of Appeals held that a television won by an employee at an automobile  auction while he was purchasing cars for his employer was not a wage.

This article is not legal advice, and should not be relied on for any purpose.  It is a summary of a complex area of the law, which may have changed since this article was posted on February 19, 2010.

Cell Phones at Work

The use of cell phones, PDAs and other electronic devices in the workplace has skyrocketed in recent years, and many employers’ policies have not kept up.  The following are some of the issues:  Employee privacy in personal data kept on a cell phone that is also used for work; employer ownership of data kept on a cell phone that is also used for work; paying nonexempt employees for time spent checking their messages outside of work hours; who is entitled to the phone number if the employee changes jobs; use of the cell phone for personal calls during work hours; use of the cell phone as an audio recording device; use of the cell phone to photograph or take video of confidential information or processes; and use of the cell phone while driving on company business.  There are others, too – this list just scratches the surface.

 Some of these issues are covered by existing laws, such as case law that governs the reasonable expectation of privacy at work; telecommunications laws regarding who can obtain data about phone use from the phone company; the FLSA and state wage and hour laws regarding when employers owe employees overtime for performing work outside of work hours; state laws such as Washington’s that prohibit audio recording under most circumstances without the consent of all parties; the Uniform Trade Secrets Act regarding protection of an employer’s trade secrets; HIPAA regarding the protection of medical information; industry-specific confidentiality laws; and laws regulating the use of cell phones while driving.

 The existing laws provide a broad framework that can be refined and clarified through well-drafted employee policies.  For example, such policies can set expectations regarding privacy, confidentiality and trade secrets and establish in advance who is entitled to access phone company data and retain the telephone number when an employee leaves.  Well-drafted policies can also limit an employer’s exposure to overtime claims and to claims for damages arising from accidents that occur when employees use cell phones while driving.  Policies can also clarify ownership of information and intellectual property such as ideas and inventions that are created during work time using a cell phone.

 If your cell phone policies are not up to date, an attorney with expertise in this area who is familiar with the laws of your state can go over the issues that are specific to your workplace and draft a policy that meets your needs.  Ogden Murphy Wallace’s Employment and Labor Law Practice Group drafts workplace policies in Washington State.  Contact Karen Sutherland in Seattle or Gil Sparks in Wenatchee for more information.

Federal Employment Law Guide Updated

The U.S. Department of Labor announced on November 30, 2009 that it has updated its online Employment Law Guide (click on title to open link).  This Guide discusses federal laws on wages and hours worked; safety and health standards; health benefits; retirement standards and worker’s compensation; lie detector tests; whistleblower and retaliation protections; plant closings and mass layoffs; union officer elections and financial controls; uniformed servicemember rights under USERRA; work authorization for non-U.S. citizens; and federal contracts, among other topics.  The Employment Law Guide is a good starting point for identifying issues under Federal law, but keep in mind that if there is a state or local law that is more protective of employees, it will probably be applied, so state and local laws should be checked before deciding if an employer is in compliance with all applicable laws.  

 There is a related federal online tool called FirstStep Employment Law Advisor, which provides basic information about recordkeeping requirements, reporting, posters and other notices relating to federal employment laws.

 This article is not legal advice, and should not be relied on for any purpose.  It is a summary of a complex area of the law, which may have changed since this article was posted on December 4, 2009.