A new U.S. Department of Labor regulation underscores the fact that gay parents and others in nontraditional families have the right to take up to 12 weeks of FMLA to care for a child with a serious health problem, or to bond with a child (under 18) who is new to the home.
This regulation is no surprise. Even before the 2009 Final Rule, any employee who was acting in loco parentis – in place of a parent – was entitled to take FMLA leave when the child had a serious health problem. An employer could require “proof” of the employee’s relationship to the child, but adoption papers or a court order were not required. In fact, even a hand-written statement from the employee that he or she was responsible for the child and was acting in the place of a parent, was sufficient under the federal Family and Medical Leave Act.
The clarification issued by assistant administrator Nancy Leppink of the Wage and Hour Division simply underscores that regulation. Leppink points out that the new regulation would permit a stepparent to take time off to bond with a new child or to care for a child with a serious health condition. The new regulation specifically extends FMLA coverage to both partners in a gay relationship who coparent a child, whether the partners (more…)
The U.S. Department of Labor recently ruled that employees must be paid to don and doff protective gear. In addition, the agency ruled that putting on special work clothing or protective gear may trigger the continuous workday, meaning employees would have to be paid for all time after that event.
The Wage and Hour Division has long determined that an employee need not be compensated merely for changing clothes. For example, a server in an expensive restaurant who arrives in street clothes and changes into his tuxedo before work, is not entitled to payment for the time spent changing. However, the issue of changing into protective clothing is more complex.
The Department of Labor has waffled on this issue in the past. The agency issued letters in 1997, 1998 and 2001 that suggested employees were entitled to payment for time spent putting on protective gear including plastic arm guards, polar sleeves, mesh gloves, rubber boots, wrist wraps, shin guards, and mesh aprons. The 1997 memo specifically addressed protective gear worn in poultry processing plants.
Two opinion letters issued during the George W. Bush administration overturned that directive. In those letters, dated 2002 and 2007, Wage and Hour used a convoluted argument based on a 1982 dictionary to “prove” that protective clothing including face masks and bullet-proof vests is “clothing” and time spent changing was not compensable.
The June 16, 2010 opinion letter issued by Deputy Administrator Nancy Leppink overturns that decision. Leppink argues that protective gear used in the meatpacking industry today, including impermeable gloves and face masks, is far more elaborate, and employees should be paid for changing time.
Leppink also notes that even when employees are not paid for changing into protective gear, doing so may trigger the beginning of a continuous workday – meaning the employees are entitled to payment for all time after that. An employee who changes into protective gear and then walks 10 minutes to a work station where he or she waits 15 minutes to begin the day, would be entitled to payment for the walk and waiting time under the FLSA or Fair Labor Standards Act.
Whether or not the courts will uphold Leppink’s opinion is yet to be determined. For the present, however, it is safer for an employer to pay employees for changing time, and to consider changing the beginning of a continuous workday.
In the June 17, 2010 ruling, the Supreme Court determined that the Ontario, California police department did not violate the Fourth Amendment rights of SWAT Sergeant Jeff Quon when the employer read his explicit text messages to his girlfriend, estranged wife and a male coworker.
In the majority opinion, the court reasoned that the California employer was within their rights to audit text messages in an attempt to determine if the city’s contract with the company providing the pagers was sufficient.
When the city provided pagers to team members, it introduced a computer policy that allowed the city to monitor all network activity including Internet use and email, “with or without notice.” The pager plan included 25,000 characters of free text messages per month. However, Sgt. Quon’s supervisor told team members they could use the pagers for personal messages, as long as the team member paid any overage fees. The supervisor implied that as long as the team member paid the additional charges, texts would remain private. Sgt. Quon did pay overage fees on his pager several times.
Eventually, the city conducted an audit to determine if the pager contract provided a sufficient number of text messages per month. During the course of the audit, the employer learned that Sgt. Quon had sent many sexually explicit messages, often while he was on duty. The employee argued that this was a violation of his Fourth Amendment rights to privacy, but the Supreme Court disagreed.
In the unanimous opinion, Justice Anthony Kennedy noted that because the search was due to a legitimate work-related purpose, not excessive in scope, it was legal. The employer’s policy gave Sgt. Quon no reasonable expectation of privacy in this situation.
Employers should note that this case has limited applications to other situations. The case does not give the employer the right to read every text message sent by every employee, or to use the text messages as a way to monitor employee performance. However, it found that the employer can enforce a written company policy that provides access to employee texts, even if enforcement has been inconsistent.
Even Justice Kennedy noted that the court must proceed with care in infringing on an individual’s rights to privacy of electronic communications via equipment owned by the employer, or a government agency.
Employees in Rhode Island now have 3 years to file a suit under the state Civil Rights Act, instead of one. Earlier this year, the General Assembly overrode a July 2009 veto from Governor Donald Carcieri, to revise the statute.
Rhode Island prohibits discrimination based on race, sex, religion, color, age, disability or country of origin. The very broad Rhode Island Civil Rights Act simply entitles individuals to “enjoy equal benefits of the law.” This is usually interpreted to mean protection from employment discrimination and retaliation, among other rights. Until recently, this law had no statute of limitations on lawsuits.
A second law, the Fair Employment Practices Act or FEPA, specifically includes a one-year statute of limitations. In 2007, the Rhode Island Supreme Court ruled in Horn v. Southern Union that the two laws must be consistent. Therefore, the court imposed a one-year statute of limitations on the Civil Rights Act.
The state legislature decided that the one-year statute of limitations was too narrow, and specifically passed a law giving an employee (more…)
The Wisconsin smoking ban, which prohibits smoking in virtually every workplace, goes into effect on July 5, 2010. The 2009 Wisconsin Act 12 is more restrictive than many other state smoking bans. It requires business owners to enforce the non-smoking law, and provides greater penalties for business owners who fail to do so.
The Wisconsin non-smoking law prohibits smoking indoors in public places, including workplaces with two or more walls. This prohibits smoking in warehouses, auto shops, taverns, restaurants, sports arenas, theaters, private clubs and stores. Smoking is banned in all state and local government offices, all schools, and prisons. The law also bans smoking on public transportation and even in bus shelters.
Restaurants and bars may permit smoking in a designated outdoor area such as a patio or porch, as long as the space has only one wall. The state law permits smoking outdoors, even inches away from an open door or window.
Many states permit residents of nursing homes to smoke in certain designated areas. Wisconsin will not. All hospitals, clinics and nursing homes are included in the smoking ban.
The new law repeals an earlier statute that allowed a business owner to designate certain areas where smoking was permitted, such as private offices or an employee break room. Smoking is banned throughout the employer’s building, including cafeterias, break rooms, restrooms, vehicles, elevators and even (more…)