Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

"Son" and "daughter" under the FMLA

The DOL  recently gave a broad definition to "sons and daughters" under the FMLA.  The DOL subtitles the announcement by saying "Interpretation is a win for all families no matter what they look like."  Secretary of Labor, Hilda Sols, is quoted as  saying  "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill.  No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. 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."

Practice pointer.  Although courts have not yet had time to determine if the DOL's broad definition of son and daughter will be applied, it is likely to lead to litigation throughout the country.  Employers should examine carefully requests for FMLA leave by non-biological and non-legal parents on a case by case basis.

More Strange Stories

On June 2nd, I published an entry entitled"Two discrimination complaints where truth is stranger than fiction" which addressed a woman's claim that she was fired because she was too hot and an ex-football coach, who is white, suing the historical black university that dismissed him.  This week, Susan Antilla, with Bloomberg, published an article entitled "Sex harassment at work gets weirder, scarier."  She reviewed EEOC press releases, and come up with some of the stranger complaints made by employees.  I cannot do justice to them, so I would recommend that you read her article. 

Practice pointer.  Truth is stranger than fiction.  I routinely see allegations that make you go Duhhhh.  HR professionals need to continue to monitor the workplace, train the entire workforce on a regular basis, and take every complaint seriously, no matter how strange it may seem.

BlackBerries and Overtime

Last year, I wrote about the possible exposure to claims for overtime pay for the use of PDA's outside the regular 40 hour workweek.  A suit had been filed by various T-Mobile employees claiming that they were entitled to overtime pay since they had to use their PDA's after regular work hours.  NPR recently ran a story about a new class action lawsuit filed in Chicago by police officers.  Cheryl Corley's article, entitled "Using Your Blackberry Off-Hours Could Be Overtime" discusses a lawsuit filed by Sgt. Jeffrey Allen against the Chicago Police Department  alleging that he, together with other officers, had been given BlackBerries by the department and were using them routinely while off duty at the behest of the department, and not being compensated for it.  While using the BlackBerry for a minimal amount of time while off duty may not result in overtime, using 15 minutes a night may, and adds up in a hurry, especially in a class action suit.  Mayor Daley's reaction, as quoted in the article, is somewhat concerning, as he said the suit is "silliness in time of economic crisis" and "We're public servants.  If I asked for that, I'd be paid millions of dollars.  We'd have to take all the BlackBerrys away from the workforce."  Mayor Daley's quote is followed by a quote from Sean Rogers, an arbitrator who happens to be a former Washington D.C. police officer and is now the head of an arbitration firm:  "I don't think that any mayor would say that anti-discrimination laws are silly.  There are similar laws....I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million."

Practice pointers.

As I have written and talked about in the past, it is important for companies to have electronic communications policies, including the use of PDA's away from work.  Companies that permit, or even require the use of PDA's away from work may be subjecting themselves to overtime claims by non-exempt employees.

Additionally, employers should have a policy concerning who will deal with the press.  In my opinion, I would not want a corporate CEO making the statements that were attributed to Mayer Daley: they may come back to haunt him as this case progresses through the court system. 

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Americans With Disabilities Act Turns 20

This week marks the 20^th anniversary of the passage of the Americans With Disabilities Act. According to the Washington Post, the EEOC released a report indicating that “workers with targeted disabilities – including deafness, blindness, missing extremities, mental retardation, and partial and complete paralysis – represent less than 1% of the federal work force.” Based, in part, upon this report, President Obama issued an executive order requiring federal agencies to increase their efforts to hire 100,000 disabled employees over the next five years. “The order directs the office of Personnel Management, in consultation with the Labor Department, the EEOC and the Office of Management and Budget, to design strategies within 60 days for recruiting and hiring disabled workers. Personnel Managers at government agencies must be trained in employing the disabled. Agencies will then be required to development plans for recruiting and keeping the workers.” Also, this week, the House of Representatives passed legislation making the Internet and television more accessible to the disabled. The Bill, which now goes to the Senate, would require the telecommunications industry to caption on-line television programs and that telecommunications equipment that is used over the Internet be compatible with hearing aids. 

Practice pointer.  There has been quite a lot of recent activity concerning the accessibility of web sites for visually and hearing impaired individuals.  As with many laws, technology moves faster then the law can.  Businesses with web sites should be prepared to address these issues in the near future.

Update on Nursing Mothers

The U.S. Department of Labor, Wage and Hour Division, issuedFact Sheet No. 73 providing general information on the breakdown requirement for nursing mothers in the Patient Protection and Affordable Health Care Act which became effective on March 23, 2010. The DOL states that “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.” The DOL further points out that a bathroom is not a permissible location even if private. The location provided must be functional as a space for expressing breast milk. The DOL believes that “a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.” The break time only applies to employees who are not exempt from the FLSA’s overtime pay requirements. Employers with fewer than 50 employees are not subject to the FLSA break time requirements if compliance with the provision would impose an undue hardship. An undue hardship “is determined by looking at the difficulty or expense of compliance for specific employers in comparison with the size, financial resources, nature, and structure of the employer’s business.” The DOL further finds that “employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated the same way that other employees are compensated for break time.”

Home Depot Male-on-Male Sexual Harassment Case Settles

I recently reported on the Home Depot case involving  store manager David Corbitt.  While on appeal before the 11^th Circuit in a rare en banc session, the case settled and the appeal was dismissed before the court could enter a ruling. In light of the fact that the 11^th Circuit decided to hear the case en banc, the December panel opinion was vacated.

Practice pointer.  In light of the 11th Circuit's granting of an en banc hearing, the issues raised in this case peaked the interest of the judges.  Since the case was settled before a decision was released, the 11th Circuit will need to find another case with similar issues in order to address the issues raised in this case. 

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Last Wednesday, Sirote & Permutt hosted a seminar that addressed issues surrounding the legality of unpaid summer interns.  On Friday, Roy Williams, with the Birmingham News, published a story entitled "Grads may face hard lesson as they join job market", writing that "Continued weakness in the entry-level job market could force many newly-minted grads to accept lower-paying service sector positions or forsake income entirely by volunteering or accepting unpaid internships, according to" Challenger Gray & Christmas, a Chicago based outplacement firm.

Last month, the Department of Labor published Fact Sheet 71, entitled "Internship Programs Under the Fair Labors Standards Act".  The fact sheet sets forth the test for unpaid interns in the for profit sector:

1.  The internship, even thought it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2.  The internship experience is for the benefit of the intern;

3.  The intern does not displace regular employees, but works under close supervision of existing staff;

4.  The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5.  The intern is not necessarily entitled to a job at the conclusion of the internship; and

6.. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all 6 factors are met, the intern can be an unpaid "trainee".  The DOL takes the position that if ALL 6 factors are not met, the person is an "employee" and should be paid at least minimum wage pursuant to the FLSA.

There have been a great number of articles published about summer internships and whether or not they should be paid.  In the New York Times , Nancy Leppink, the acting director of the DOL's wage and hour division, was quoted as saying "If you are a for-profit employer or you want to pursue an internship with a for-profit employer, there aren't going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law."  The article notes that at Stanford University, there were 643 postings for unpaid internships for this past academic year, more than triple the number posted 2 years ago.  In 1992, 9% of graduating students held internships, compared to 83% of graduating students in 2008.  It is estimated that 1/4 to 1/2 of the internships are unpaid.  Two examples of questionable unpaid internships set forth in the New York Times article are:

1.  "One Ivy League student said she spent an unpaid three-month internship at a magazine packaging and shipping 20 or 40 apparel samples a day back to fashion houses that had provided them for photo shoots"; and

2.  "At Little Airplane, a Manhattan children's film company, an N.Y.U. student who hoped to work in animation during her unpaid internship said she was instead assigned to the facilities department and ordered to wipe the door handles each day to minimize the spread of swine flu."

An interesting rebuttal to the DOL's position was published in Swarthmore College's  Daily Gazette.  Soren Larson wrote that "It definitely makes me feel all fuzzy inside to know that people at the Labor Department believe that someone in the world should pay unpaid interns a living wage.  But the Labor Department has no business telling young Americans that they cannot exchange free labor for profitable market skills, connections, and impressive resume filler vital for getting that next job."

Articles on this topic have also been written in Time, The Wall Street Journal, and USA Today.  The Beasley Allen law firm, based out of Montgomery, in it's most recent "The Jere Beasley Report", May 2010, had an entry entitled "Having unpaid interns is not always legal".  In this entry, the firm states: "The abuses we are seeing is where an intern is hired and is doing the exact same job that other paid employees are doing.  In fact, many of them are separately assigned work and have minimum oversight.  Similarly, if an intern is simply making coffee, running errands and cleaning all day, without receiving any educational experience, then the internship probably violates federal law and should be paid."  Beasley Allen is one of the most successful plaintiff's firms in Alabama, and is apparently trying to generate interest in handling these types of cases.

Practice pointer.  The issue of unpaid interns is high on the list of the DOL.  It is also generating interest in the plaintiff's bar.  Most interns and most companies will not complain to the DOL or to a law firm: both receive benefits from the relationship.  But with numerous employers posting unpaid intern positions in public places, such as college campuses, it is easy for the DOL to determine which companies are using unpaid interns.  Also, some of the unpaid interns may become disillusioned with the position, such as those mentioned above, and may actively seek out legal advice.  With all the publicity about this topic in numerous publications, I anticipate that there will be an increase in FLSA claims over the unpaid intern issue. 

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Beginning today, January 16, 2009, the Department of Labor's regulations concerning the FMLA are now in effect.  Based on my review of the final regulations, I believe that the following 3 components of the FMLA will have the most impact on employers.

1.  Military caregiver leave and qualifying exigency leave.  Eligible employees who are family members of covered servicemembers are now able to take up to 26 work weeks of leave in a single 12 month period to care for a covered servicemember with a serious illness or injury suffered in the line of duty while on actiive duty.  For a more detailed discussion of this change, please see my blog entry of December 4, 2008.

2.  Employer notice obligations and new forms.  Employers are now required to give employees general notice of the FMLA, through a poster and either an employee handbook or upon hire, an eligibility notice, notice of rights and responsibilities, and a designation notice.  There are new forms published by DOL  and available on the  DOL website.

3.  Adoption of the Ragsdale decision.  The United States Supreme Court decided the case of Ragsdale v. Wolverine World Wide Inc, which found that an employer does not need to provide additional FMLA leave as a penalty for failure to appropriately designate FMLA leave.  The final rule, although removing the prior categorical penalty provisions, does find that when an employee suffers individualized harm due to the failure to properly follow the notification rules, the employer may be liable.

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