Son and Daughter under the FMLA and More strange stories
"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.
