New York State Department of Labor Adds Counsel Opinion Letters to Website

August 18, 2010

By Subhash Viswanathan

The New York State Department of Labor recently added to its website opinion letters written by its Counsel’s Office. The Counsel's Office provides legal advice and counsel to the Commissioner of Labor and to programs within the Department. The opinion letters are primarily responses to requests for advice submitted by employers. All the letters are text-searchable.  They cover three general topics: wage and hour law, public works projects and the State Worker Adjustment and Retraining Notification Act (“WARN”). The wage and hour law letters span a wide variety of topics from blood donation leave and accommodations for nursing mothers to employment classifications, independent contractor issues, meal and rest periods, overtime, and wage deductions under Labor Law Section 193. The public works projects letters deal with state requirements for payment of the prevailing wage (the local union wage) by private employers performing work on public works projects. Most of those letters address whether the prevailing wage law applies to particular types of work. There are only a few opinion letters related to WARN, which is not surprising because the statute and its implementing regulations are still relatively new. Interestingly, none of the letters made publicly available predate 2007, the first year of a newly elected Democratic administration.

OSHA Issues High Penalty Failure-To-Abate Citations

August 11, 2010

By Michael D. Billok

An employer that has entered into a settlement agreement with OSHA, or that has been found in violation of OSHA regulations or the general duty clause--either by order of an Administrative Law Judge or as a consequence of accepting a citation--should adhere to all provisions of any agreement, and abate all cited conditions. An OSHA Area Office may assess a failure to abate penalty of up to $7,000 per citation item per day for each day the condition is not abated. Normally, the maximum time period is 30 days, for a maximum penalty per citation item of $210,000, but that time period may be increased in exceptional circumstances.

Last week, OSHA issued citations of over $200,000 each to two New York businesses. The first, totaling $210,000, was issued to Broadway Corp., doing business as Broadway Concrete, for failing to abide by a settlement agreement entered into after first receiving a citation for lack of fall protection back in 2008. OSHA conducted a follow-on inspection in January of this year, and in the new citation alleges that Broadway Concrete performed work at eight sites in New York City without adequate fall protection, in violation of the settlement agreement. The second citation issued last week, totaling $247,000, was issued to U.F.S. Industries, doing business as Sally Sherman Foods, for failing to abate conditions previously cited--lack of fall protection, machine guarding, and inadequate lockout/tagout--following a prior inspection at its Mount Vernon facility.

New York Area Offices have recently issued several other high-penalty failure-to-abate citations, suggesting that this may signal a new direction in enforcement in Region 2 (which includes New York and New Jersey):
 

  • On July 20, OSHA issued citations totaling $112,000 in penalties to a Home Depot in West Nyack, chiefly for failure to abate items regarding potential employee exposure to methylene chloride.
  • On June 2, OSHA issued citations totaling $346,500 in penalties to CEC Elevator Cab Corp in the Bronx, chiefly for failure to abate items regarding various programs and training.
  • On April 28, OSHA issued citations totaling $107,000 to the Service Manufacturing Group in Buffalo, chiefly for failure to abate items regarding cranes, slings, fire extinguishers, and other issues, at its sheet metal fabrication plant.

Last, but certainly not least, last week OSHA issued the third largest citation in history, $16.6 million to several contractors and subcontractors for alleged violations associated with the February 7, 2010 explosion at the Kleen Energy power plant in Middletown, CT. (The two largest OSHA citations were issued to BP in association with a 2005 explosion at its Texas City refinery, and alleged failures to abate conditions following the expiration of a settlement agreement.) 

UPDATE:  SInce this post was first published on August 11, another New York Area Office just issued a six-figure failure-to-abate citation, this time a $114,750 citation to Pierce Industries, a Rochester machine shop, for failing to correct a variety of hazards following an initial citation issued in December 2009.

Court Upholds 55/25 Early Retirement Incentive: Appeal Filed

August 6, 2010

By Subhash Viswanathan

            On July 23, 2010, the Supreme Court of Albany County upheld the constitutionality of Chapter 45 of the Laws of 2010. Chapter 45, which was signed into law by Governor David Paterson on April 14, 2010, creates an early retirement incentive for employees in positions represented by collective bargaining units affiliated with the New York State United Teachers (“NYSUT”) who belong to either the New York State Employee Retirement System (“ERS”) or the New York State Teachers Retirement System (“TRS”), are at least 55 years of age, and have attained at least 25 years of creditable service (“55/25 Legislation”). The 55/25 Legislation allows eligible employees to retire without the reduction in retirement benefits that would normally apply to retirement system members who are on Tiers 2, 3, or 4, and who do not have 30 years of service. A more complete description of the 55/25 Legislation is set forth here.

            Two days after the 55/25 Legislation was signed into law, on April 16, 2010, the Empire State Supervisors and Administrators Association (“ESSAA”), a union that represents primarily administrators and supervisors in public school districts, and the Baldwin Supervisors Association (“BSA”), a local affiliate of the ESSAA, initiated a court proceeding challenging the 55/25 Legislation. Specifically, the ESSAA and BSA alleged that the 55/25 Legislation violated the First and Fourteenth Amendments of the United States Constitution, as well as Article 1, Section 11 of the New York State Constitution, by limiting eligibility only to individuals who are employed in positions represented by collective bargaining units affiliated with NYSUT. The ESSAA and BSA argued that the 55/25 Legislation violated their rights to equal protection and freedom of association.

           

        In the July 23, 2010 decision, the Court rejected the challenge to the 55/25 Legislation, finding that it was not irrational or illogical of the Legislature to limit eligibility only to employees in positions represented by bargaining units affiliated with NYSUT. The Court accepted the argument of the State and NYSUT that “early retirement incentives in the public school context can be particularly effective when targeted at teachers (i.e. individuals who provide direct classroom instruction) because a high-salaried teacher who accepts an early retirement incentive will often be replaced by a new, entry-level teacher at a lower salary” while in contrast “an outgoing administrator will typically be replaced by an individual closer in rank and, therefore, comparable in salary.” According to the Court, as NYSUT represents virtually all of the classroom teachers and teaching assistants employed in public schools across New York State, it was rational for the Legislature to limit eligibility to employees in bargaining units affiliated with NYSUT because “NYSUT affiliated locals are a reasonable proxy for teachers.”

            The Court recognized the fact that there are four public school districts in which NYSUT does not represent teachers and related teaching titles. If the plaintiffs in this case had been teachers at one or more of those public school districts who would have been eligible for the incentive but for their union affiliation, it is not clear whether the outcome would have been the same. It is possible that eligible employees in the same type of position supposedly targeted by the 55/25 Legislation (classroom teachers) who were excluded from the incentive simply because they were not in NYSUT bargaining units might have had an easier time establishing that the NYSUT-only restriction was not rational. In that context, the Court could not have focused solely on the teacher vs. administrator distinction, and the argument that “NYSUT affiliated locals are a reasonable proxy for teachers” would likely be much less persuasive. However, because the plaintiffs in this case were unions that represented primarily administrators and supervisors, the Court did not reach the issue of whether it was rational to exclude the few eligible teachers who are not part of NYSUT bargaining units.

 

            Within several days of the Court’s decision upholding the 55/25 Legislation, the ESSAA and BSA filed a Notice of Appeal. Accordingly, the fate of the 55/25 Legislation has not yet been conclusively determined. TRS recently released a statement that it will continue to implement Chapter 45 as written, but that “the payment of the unreduced retirement benefit to eligible members who retired pursuant to Chapter 45 will be subject to the final outcome of any appellate process.”

 

If the appellate court ultimately finds Chapter 45 to be unconstitutional, it is possible that individuals who have retired under its provisions may have their pensions reduced to reflect the penalty for retiring prior to attaining 30 years of service. However, it is also possible that the appellate court could eliminate the NYSUT-only restriction on eligibility, which would cure the unconstitutionality of the 55/25 Legislation while at the same time not causing a reduction in the pensions of individuals who retired in reliance upon the 55/25 Legislation.

United States Department of Labor to Revise Regulations on Reporting of Costs Related to Union Organizing Campaigns

August 2, 2010

By Colin M. Leonard

As part of its Spring 2010 regulatory agenda, the U.S. Department of Labor (“USDOL”) has indicated it plans to revise its longstanding interpretation of federal law on the reporting and disclosure requirements for employers in connection with a union’s organizing campaign. Such reporting is required under the Labor-Management Reporting and Disclosure Act (“LMRDA”), which contains various financial disclosure requirements for employers, unions and others. Among other things, the LMRDA requires employers to file annual reports with the federal government to disclose agreements made with third parties (and any associated payments), where a purpose of the agreement is to persuade employees with respect to their right to unionize. A willful failure to submit a required report or material false statements made on the report are crimes.

However, the LMRDA does not require reporting to the federal government where the services rendered relate to the “giving or agreeing to give advice” to an employer. Since at least 1962, the long-standing interpretation of the “advice exception” excludes from reporting various persuader activities performed by third party consultants, including the preparation of documents and materials to be used by the employer during the organizing campaign. As long as the third party consultant does not meet directly with employees in connection with persuader activities, agreements relating to these types of services need not be reported. The Office of Labor-Management Standards, which enforces the LMRDA, states that the advice exception has been “broadly interpreted to exclude from reporting any agreement under which a consultant engages in activities on behalf of the employer to persuade employees concerning their bargaining rights but has no direct contact with employees, even where the consultant is orchestrating a campaign to defeat a union organizing effort.” (Emphasis added). In fact, Judge (now Justice) Ruth Bader Ginsburg upheld this interpretation of the “advice exception” when the United Auto Workers sought to challenge the agency’s position in the late 1980s. U.A.W. v. Dole, 869 F.2d 616 (D.C. Cir. 1989).
 

The Obama administration now seeks to narrow the scope of the “advice exception” to require greater reporting and disclosure of an employer’s use of consultants in connection with union organizing efforts. Given the dramatic decline in union membership (now just 7.2% of private sector workers), unions are exploring every avenue to stem the losses. And the Obama administration apparently believes that changing the USDOL's long-standing interpretation of the “advice exception” may help unions reverse that trend by requiring employers to disclose the dollars spent in opposing a union organizing effort.

Because the process of notice and comment rule-making is currently ongoing, with initial promulgation of the draft regulation slated for November 2010, it is not clear exactly what form the revised regulation will take. Many believe that the administration will attempt to revive some version of the regulation that was promulgated in the last days of the Clinton administration and quickly rescinded by the Bush administration. Were the proposed Clinton administration regulation adopted, all services related to the preparation of materials would be reportable, if a purpose of the materials was to persuade employees – even if the consultant never engaged in persuader activities directly with employees.
 

Preventive Care Coverage Requirements Under Health Reform

July 29, 2010

One consequence of losing grandfathered plan status in an employment-based group health plan is the requirement that specified preventive services must be covered on a "first dollar" basis. This means that the specified preventive care services may not be subject to a deductible, co-payment, or other cost-sharing requirement. The agencies jointly responsible for enforcing the Patient Protection and Affordable Care Act ("Affordable Care Act") -- the Internal Revenue Service, the U.S. Department of Labor Employee Benefit Security Administration, and the Department of Health and Human Services -- jointly published interim final regulations ("Regulations") relating to the coverage of preventive care services on July 19, 2010. The Regulations apply to new plans and to non-grandfathered group health plans for plan years beginning on or after September 23, 2010 (January 1, 2011, for calendar year plans).  Key aspects of the Regulations are explained below.

Preventive Care Services

The Affordable Care Act requires that group health plans and health insurance issuers provide first dollar coverage for:

  • Evidence-based items or services that are highly rated by the U.S. Preventive Services Task Force. The regulations list those recommended items and services as of July 14, 2010. The list details 44 items, including such services as screenings for diabetes, blood pressure, cervical, colorectal and breast cancer, certain sexually transmitted diseases, and many services related to pregnancy and childbirth.
  • Immunizations recommended for routine use in children, adolescents and adults by the Centers for Disease Control and prevention, which the regulations define to include such routine childhood vaccines as Measles, Mumps, Rubella, Hepatitis A and B, Tetanus, Diphtheria, Pertussis, and Inactivated Poliovirus, as well as adult immunization for HPV, Meningococcal, Influenza and Zoster, among others.
  • Evidence-informed preventive care and screenings for women, infants, children and adolescents that are contained in guidelines supported by the Health Resources and Services Administration.

A complete list of required preventive services and items required under the Regulations is available at http://www.HealthCare.gov/center/regulations/prevention.html. If additional preventive care services and items are added to the list, the Affordable Care Act requires that there be a minimum interval of one year between the date the recommendations are issued and the plan year in which first dollar coverage must be provided. If a preventive service or item is dropped from the list, the plan may drop the coverage, or impose cost-sharing, with 60 days advance notice to the enrollee.

A group health plan or issuer may provide additional preventive care services beyond those contained in the current requirements, with or without cost-sharing, in its discretion.

If the preventive care recommendation or guideline does not specify how, or how often, the service or item is to be delivered, the Regulations permit the health plan or issuer to use reasonable medical management techniques to determine coverage limitations, such as the frequency, method, treatment, or setting in which the recommended preventive service will be available without cost-sharing.

When Preventive Care is Provided with Other Services

The Regulations recognize that many preventive care services are rendered in connection with other services in an office visit, and contain guidance regarding how the "first-dollar" rule applies in those circumstances. The standard rule is, if the preventive service is billed separately, cost-sharing may be imposed with respect to the office visit. In cases where the preventive service is not billed separately (or, in capitation or similar payment situations, there is no separate tracking of the individual encounter data), the following rules apply:

  • If the primary purpose for the office visit is the preventive service, no cost-sharing may be imposed for the office visit; and
  • If the primary purpose of the visit is not the preventive service, the health plan may impose the applicable cost-sharing requirements to the office visit.

In-Network vs. Out-of-Network Preventive Services

The Regulations specify that a health plan that differentiates between services provided by in-network providers and those available from out-of-network providers is not required to provide coverage for recommended preventive services and items delivered by an out-of-network provider. If such services are delivered by an out-of-network provider, they may be subject to the cost-sharing requirements of the health plan.

The Economic Impact of First Dollar Preventive Services

One of the key considerations employers face regarding whether to maintain grandfather status in a health plan is the cost effect of first-dollar preventive services (see the June, 2010, BS&K Employee Benefit Information Memorandum to determine what plan changes affect grandfather status). The federal Office of Management and Budget has determined that these regulations are economically significant because they are likely to have an annual effect on the economy of $100 million in any one year. For non-grandfathered group health plans, because preventive care expenses that were previously paid out-of-pocket will be covered by group health plans and issuers, the demand for these services will likely increase, and the cost of these services will likely result in higher premiums. Your insurer, insurance broker, or health plan actuary may be able to estimate the actual cost to any particular group health plan.
 

Break Time For Nursing Mothers Under the FLSA - Balancing Obligations Under New York Law With New Federal Requirements

July 23, 2010

By John M. Bagyi

Yesterday, the US Department of Labor issued a fact sheet  that provides general information on the break time requirement for nursing mothers, part of the Patient Protection and Affordable Care Act which took effect March 23, 2010. While these amendments to the Fair Labor Standards Act (FLSA) represent a significant change for employers in many states, since 2007, New York employers have been required to provide reasonable unpaid break time, or permit employees to use paid break time or meal time, to express breast milk. See our earlier posts on New York's requirement.

Thus, for New York employers, the most important observation contained in the US DOL's fact sheet is that the FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees. New York's protection of nursing mothers provides employees with a number of protections that exceed those provided under the new federal law. For example, New York law protects expression of breast milk up to three years following the birth of the child (federal law is limited to one year) and applies to all employers (federal law does not apply to employers with fewer than 50 employees).

Given that New York's protection of nursing mothers provides greater protection than the recent FLSA amendments, employers complying with existing New York law will be in compliance with the new federal law as well.

 

No COBRA Subsidy in Unemployment Benefits Extension

July 22, 2010

The emergency jobless benefits bill that cleared Congress today does not revive the COBRA subsidy for involuntary terminations. The subsidy expired with respect to terminations after May 31st.
 

New Regulation Requires Federal Contractors To Disclose Subcontracts And Compensation Of Executives

July 21, 2010

By Larry P. Malfitano

A new regulation issued jointly by several federal agencies requires many federal contractors to disclose first-tier subcontract awards of $25,000 or more and to disclose the compensation paid to their top five executives. The new regulation was published in the Federal Register on July 8, 2010 and became effective on that date. The regulation was issued by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration and implements the Federal Funding Accountability and Transparency Act (“FFATA”). The FFATA’s provisions state that it was enacted to reduce “wasteful and unnecessary spending” by requiring the federal government to “establish a free, public, on-line database containing full disclosure of all federal contract award information.”

The new regulation requires prime contractors to report first-tier subcontract awards of $25,000 or more at http://www.fsrs.gov. The regulation also requires contractors to report, at http://www.ccr.gov, the name and total compensation of each of the contractor’s five most highly compensated executives for the contractor’s preceding completed fiscal year in which the awards were made, and to make a similar report for subcontractors at http://www.fsrs.gov. The required information reported by federal contractors will be made available to the public.
 

Contractors and subcontractors are exempt from the reporting requirements contained in the regulation if their gross income is less than $300,000. The disclosure of compensation paid to the top five executives will be required only if the contractor or subcontractor receives at least 80 percent of its annual gross revenue and $25 million from federal awards, and if senior executives do not already publicly report compensation information.

The preamble to the new regulation acknowledges that it “may have a significant economic impact on a substantial number of small entities.” To address this burden, the reporting obligation will be phased in. Until September 30, 2010, new subcontracts must be reported only on prime contracts worth more than $20 million. From October 1, 2010 to February 28, 2011, reporting will be required for prime contracts worth more than $550,000. As of March 1, 2011, reporting will be required for all subcontracts at the $25,000 or greater threshold.
 

Second Circuit Finds Pharmaceutical Sales Reps Not Exempt Under FLSA

July 16, 2010

By Katherine R. Schafer

On July 6, 2010, the Second Circuit Court of Appeals held that pharmaceutical sales representatives employed by Novartis Pharmaceuticals Corp. (“Novartis”) are not exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”) as either “outside sales” or “administrative” employees. In so doing, the Court determined that the Secretary of Labor’s interpretations of the regulations promulgated under the FLSA defining “outside sales” and “administrative” employees, as set forth in the Secretary’s amicus brief , were entitled to “controlling” deference.

The Second Circuit rejected Novartis’ argument that its sales reps “made sales” within the meaning of the “outside sales” regulations because the reps only promoted a drug to a physician. They could not lawfully take an order for its purchase or obtain a binding commitment from the physician to prescribe the drug to a patient. While the sales reps provided physicians with free samples, Novartis sold its drugs to wholesalers, which then sold them to pharmacies, and the pharmacies ultimately sold the drugs to the patients who had prescriptions for them. Accordingly, since the sales reps did not “make sales,” they were not “outside salespeople” within the meaning of the FLSA and the regulations.
 

The Court also agreed with the Secretary of Labor that the sales reps were not “administrative” employees under the FLSA because the marketing skills “gained and/or honed” through Novartis training sessions did not demonstrate that the sales reps were “sufficiently allowed to exercise either discretion or independent judgment in the performance of their primary duties.”

Writing for the Court, Judge Amalya L. Kearse acknowledged that a number of federal district courts have held that pharmaceutical sales reps are exempt under the outside sales and/or administrative exemptions, but responded that “[t]hose cases are, of course, not binding on us, and their reasoning does not persuade us that the Secretary’s interpretations of the regulations should be disregarded.” Judge Kearse added, “[t]o the extent that the pharmaceuticals industry wishes to have the concept of ‘sales’ expanded to include the promotional activities at issue here, it should direct its efforts to Congress, not the courts.”
 

New York's Highest Court Limits Ability of Non-Residents to Sue Under New York State and New York City Human Rights Laws

July 13, 2010

By Colin M. Leonard

In a 4-3 decision, the New York Court of Appeals ruled on July 1, 2010, that a non-resident cannot sue his employer under the New York State  and City Human Rights Laws, unless he can demonstrate that the alleged discriminatory conduct had an impact within the State or City of New York. The case, Hoffman v. Parade Publications, Inc. resolves a split of authority over the applicability of the State and City Human Rights Laws to non-residents. Prior to Hoffman, some courts had ruled that a non-resident plaintiff could assert a Human Rights Law claim when the termination decision was made in New York, even if the plaintiff otherwise had no connection to New York. The Hoffman case has been closely watched by New York employers who have employees working in other parts of the country. Plaintiffs’ attorneys often seek to take advantage of the State or City Human Rights Laws where possible, because those laws are often broader and more protective of employees than are federal law and the laws of many other states.

The case was brought by Howard Hoffman, a former employee of Parade Publications, the publisher of a nationally syndicated Sunday newspaper insert, with headquarters in New York City. Hoffman, however, worked in the company’s Atlanta, Georgia office and resided in that state. He attended quarterly meetings at the company’s New York City headquarters, but otherwise had no contact with New York and did not service any accounts in New York.

In October 2007, the company’s president contacted Hoffman by phone from New York City and told him the Atlanta office was being closed and that he was being terminated. Hoffman subsequently sued Parade Publications alleging age discrimination in violation of the New York State and New York City Human Rights Laws.

The trial court dismissed the complaint, holding that neither the State nor City Human Rights Laws applied to Hoffman, because the impact of the termination decision was not felt within the City or State of New York. The Appellate Division reversed and concluded that a non-resident plaintiff need only establish that the discriminatory decision was made in New York. The Court of Appeals then reversed the Appellate Division.

The Court of Appeals reviewed the City and State Human Rights Laws and noted that the statutory language expressed an intent to protect “inhabitants” of the City, “the people” of the State and those “individual[s] within” the State. According to the Court, it would be inconsistent with the statutory intent to extend the protection of those laws to non-residents who have at most “tangential contacts” with the City or the State. By focusing on whether the impact of the decision is felt within the State or the City, the Human Rights Laws will provide protection to non-residents who work in New York. At the same time, the impact analysis excludes non-residents from “forum shopping” their claims to take advantage of New York’s and New York City’s broader Human Rights Laws. Had Hoffman sued Parade for age discrimination under Georgia state law, his maximum recovery would have been a fine of $250.

After Hoffman, it is clear that the mere fact a termination decision was made in New York will be insufficient, standing alone, to assert a cause of action under the State or City Human Rights Laws with regard to a non-resident employee who does not work in New York and/or New York City. What remains unclear is how courts will assess the “impact” requirement going forward. In many ways Hoffman was an easy case because Hoffman clearly did not work in New York. But other situations may prove more difficult, such as the employee who reports to multiple offices, including one in New York. Or an employee who travels frequently on business within New York, but is otherwise based at a location outside of the State.

 

NEW OSHA TASK FORCE WILL CONSIDER UPDATING PERMISSIBLE EXPOSURE LIMITS

July 6, 2010

The Occupational Safety and Health Administration (OSHA) may be considering an update of its list of permissible exposure limits (PELs) for many regulated chemicals and recognized air contaminants. According to BNA’s Daily Labor Report, at the May 26, 2010 American Industrial Hygiene Conference and Expo in Denver, OSHA Administrator David Michaels told the group that the Agency is in the process of assembling a task force to examine the possibility of updating current PELs. Most of the PELs have remain unchanged since first being set by OSHA in 1971, and revising the limits may be easier said than done. Because of that difficulty, Administrator Michaels urged that “all of us in the occupational safety and health community have to engage in support of this process because it is a very difficult one.”

This is not the Agency’s first attempt at implementing PEL revisions, and a prior attempt was not successful. By way of background, an employer is required under the “General Duty Clause” of the Occupational Safety and Health Act of 1970 to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Act also requires employers to “comply with occupational safety and health standards promulgated” by OSHA. Pursuant to this authority, OSHA promulgated numerous PELs for air contaminants in 1971; these standards are organized into three industries: general industry, shipyard employment, and the construction industry.
 

In 1989, OSHA implemented more than 400 revised and updated PELs because of its concern that the 1971 limits were outdated and based on obsolete science. In response, however, representatives from various industries and associations (including the AFL-CIO) challenged the updated PELs in court, claiming that OSHA had not followed the proper procedures for making the revisions and that there was not enough scientific evidence or support to justify the updates. Interestingly, the arguments by the various groups that joined together in the lawsuit varied dramatically, from claims that updated PELs were too low to arguments that they were too high. After years of litigation, the Eleventh Circuit Court of Appeals, based in Atlanta, refused to enforce any of the updated PELs and concluded that “OSHA has lumped together substances and affected industries and provided such inadequate explanation that it is virtually impossible for a reviewing court to determine if sufficient evidence supports the agency’s conclusion.”

Now, it appears the Agency has again set its sights on revising and updating PELs – almost forty years after the standards were first set and more than twenty years after its last failed attempt. It remains to be seen precisely what approach OSHA will take or what impact such changes may have on employers. However, as this agency initiative develops, employers and associations should monitor it and take an active role if OSHA solicits their input.

 

USDOL Interprets FMLA to Apply to Domestic Partners, Grandparents, and Other Individuals Providing Day-to-Day Care for Children

July 1, 2010

By Kseniya Premo

Recently the U.S. Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation (the “Interpretation”) clarifying the definition of “son or daughter” under Section 101(12) of the Family Medical Leave Act (“FMLA”) as it applies to an employee standing “in loco parentis” to a child. The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a child after adoption or birth, or to care for a child with a serious health condition. The Interpretation concludes that these rights extend to any individual who assumes the role of caring for a child, regardless of the legal or biological relationship.

The definition of a “son or daughter” under the FMLA 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.” According to the Interpretation, the legislative intent behind this definition was to reflect the reality that often the day-to-day responsibility of caring for a child falls to someone without a biological or legal relationship to the child, and that employees with such a responsibility are therefore entitled to leave under the FMLA.

In loco parentis, or “in the place of a parent,” is commonly understood to mean a person who has assumed obligations typical of a parent without formally adopting the child. Courts have routinely looked to the intent of the person allegedly in loco parentis to determine whether such a relationship is established; such intent is inferred from the acts of the parties. Whether an employee stands in loco parentis depends on multiple factors such as the age of the child, the child’s dependence on the employee, the amount of support provided and to what extent the employee performs duties commonly associated with parenthood.
 

Although FMLA regulations define persons standing in loco parentis as including those with day-to-day responsibilities to care for and financially support a child, the Interpretation views the regulations as not requiring an employee to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis. In addition, the Interpretation makes special note that neither the statute or the regulations restrict the number of parents a child may have under the FMLA. Although an employer may require the employee to provide reasonable documentation of the family relationship, a simple statement asserting that the requisite relationship exists is sufficient.

Examples of situations in which an in loco parentis relationship may be found include:

  • A grandparent assuming ongoing responsibility for a grandchild due to the parents’ incapacity;
  • An aunt assuming responsibility for raising a child after the death of the child’s parents; and
  • A person sharing in the raising his or her unmarried partner’s biological child.