If you’re like us, you’ve been bombarded with articles and blog posts and e-mail alerts claiming that a recent Administrator’s Interpretation issued by the Department of Labor has greatly expanded the class of people who are allowed to take FMLA leave to care for a child. These articles, including the DOL’s June 22, 2010 press release, suggest that employees who care for a child as a parent are now entitled FMLA leave even if that employee has no biological or legal relationship to the child – as if that hasn’t already been the case for the last 15 years.

The fact is that since the DOL issued its FMLA regulations in April 1995, it has been clear that individuals who stand in loco parentis (Latin for “in the place of a parent”) to a child are entitled to FMLA leave regardless of any biological or legal relationship to the child. Indeed, the regulations issued in 1995 explicitly define “parent” as “a biological parent or an individual who stands or stood in loco parentis…” and define “son or daughter” as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis…” The regulations go on to clarify the meaning of in loco parentis:

Persons who are “in loco parentis“include those with day-to-day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

So, since 1995, it has been more than clear that a biological or legal relationship to a child was not necessary in order to take FMLA leave for that child. Why the DOL is issuing a press release with the tag line “Interpretation is a win for all families no matter what they look like” is beyond me. The only thing I can think of is that, since the current administration has been a large disappointment to the LGBT community who hoped to have seen by now the end of “Don’t Ask Don’t Tell” and the elimination of the Defense of Marriage Act, the DOL is issuing press releases like this one to make it look like the government has actually accomplished something for nontraditional families.

The DOL’s Administrator Opinion did make one change to the FMLA regulations, however – the opinion stated that where the regulations state that in loco parentis individuals include “those with day-to-day responsibilities to care for and financially support a child,” this is to be interpreted as including “individuals with day-to-day responsibilities to care for a child” and “individuals with day-to-day responsibilities to financially support a child.” In other words, one individual does not need to both care for and financially support a child in order to stand in loco parentis – doing either will suffice. So perhaps technically the group of people who are entitled FMLA has been expanded a tiny bit, but certainly not as much as all the recent hype suggests, and certainly not enough for the DOL to go around slapping itself on the back and blowing its horn about how much they’re doing for nontraditional families.

There has been massive amounts of attention paid to health care reform and the key points contained within the Patient Protection and Affordable Care Act; however, various provisions within that nearly one thousand page document have stayed under the radar screen, like the tiny provision amending the Fair Labor Standards Act (”FLSA”).

The FLSA amendment found in 29 U.S.C. 207 (r)(1) requires employers covered under the FLSA to provide a reasonable break time for an employee to express breast milk for her infant child. “Reasonable break time” is not defined in the amendment. Under the amendment, employers must provide such breaks for up to one year after the child’s birth, but do not need to compensate for any time spent on such a break. Employers also must furnish employees with “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” for expressing breast milk during the breaks.

Employers of less than 50 employees may be excused from providing breaks for breastfeeding, but only if doing so would create an “undue hardship.” Under the new amendment, “undue hardship” is defined as a hardship that causes significant difficulty or expense and is measured by the size, financial resources, nature, or structure of the employer’s business.

Although many states already have their own laws pertaining to expressing breast milk, employers in states that do not must now make sure they provide reasonable breaks for expressing breast milk and secure a private place for this to occur. Employers that are in states that have these laws in place, like Connecticut, must adhere to whichever law is most favorable to the employee.

Today, President Obama appointed two pro-union attorneys, Craig Becker and Mark Pearce, to the National Labor Relations Board. Obama made these appointments unilaterally, using what is known as a recess appointment, which is an appointment made while Congress is not in session that does not require Congress’ assent. Brian Hayes, a third nominee and member of the GOP, was left behind to be voted on by Congress.

These recess appointments do not bode well for employers. Becker, a controversial pro-union advocate, most recently was employed as Associate General Counsel for the Service Employees International Union and prior to that worked was an attorney for the AFL-CIO. Pearce also is a pro-union attorney. With these appointments, the NLRB will now have a 3-1 Democratic majority. Because these appointments were made during a Congressional recess, the terms for these appointees will end in 2011 whereas appointments with Congressional approval last five years.

Last week, the United States Senate approved a tax extender package, which contains provisions that would extend the COBRA subsidy to December 31, 2010. The Act also would extend emergency unemployment benefits and allow for certain tax breaks.

The Senate bill is slated to go to a committee for further debate and consideration, which obviously will delay its ultimate enactment. We will keep you posted on any developments.

Recently, the Massachusetts Commission Against Discrimination awarded $100,000 in emotional distress damages in addition to an award of back pay to a Complainant who resigned from her job after she alleged no one would accommodate her disability (coronary artery disease). In MCAD et al. v. Codman & Shurtleff, Inc., an MCAD hearing officer concluded that the company had sufficient notice of a need for accommodation and, then, despite that notice, failed to engage in the interactive process. Because of that failure, the Hearing Officer determined that Complainant was justified in quitting her job.

In this case, Complainant claimed she had made several requests for a reduction in her workload both to Human Resources and her supervisor. On one occasion, she told the Human Resources Manager that if her workload was not reduced, she would “suffer a heart attack and die.” When her workload was not reduced, she requested a leave of absence for cardiovascular distress, which was granted. Complainant took a total of three leaves of absence for this condition. Following her leaves, Complainant continued to request that she have a lighter workload and, ultimately, when that did not happen, she quit.

Thereafter, Complainant sued for disability discrimination, asserting that her former company had failed to engage in the interactive process with her and, thus, compelled her resignation. In its defense, the company claimed that it had no notice of her disability and, because of that, the duty to engage in the interactive process was never triggered. The company also asserted that it had nevertheless accommodated Complainant by providing her with three leaves of absence.

The Hearing Officer disagreed with the company’s position and, instead, found that Complainant’s statement to Human Resources and subsequent leaves of absence was sufficient to put the company on notice of a need for accommodation. The Hearing Officer further found that after Complainant’s “numerous requests to revise her job duties and three medical leaves resulting in large part from the stress of the job,” Complainant had no other avenue but to quit her job because Respondent refused to engage in a dialogue about the ways it might try to alleviate her burdensome workload.

Although the result in this case is frustrating because there is obviously no requirement that an employer change the nature of the job or remove essential job duties in order to accommodate someone with a disability, the case itself serves as a good example of how crucial it is to have an interactive dialogue with an employee in which different accommodations are discussed, regardless of whether or not the employee’s initial request for accommodation seems reasonable. Indeed, perhaps in this case there was no accommodation that ultimately would have worked for this Complainant short of changing her job altogether; nevertheless, the act of engaging in the process itself is what might have saved this company from a large judgment.

Late on Tuesday, President Obama signed the Temporary Extension Act of 2010, a bill that extends the COBRA subsidy to March 31, 2010 and applies retroactively. Extended once previously, the subsidy had been slated to expire on February 28, 2010. The Temporary Extension Act contains various provisions that are intended to clarify portions of the previous law. The Act also extends unemployment benefits.

After several postponements and amendments, Massachusetts regulations 201 CMR 17, Standards for Protection of Personal Information of Residents of the Commonwealth, went into effect today. These regulations create very specific obligations for businesses that own or license personal information about any Massachusetts resident, regardless of the size of the business or the number of employees that business employs. All businesses are required to be in full compliance with the regulations by March 1, 2010.

The first step business must take to get into compliance with the new regulations is to implement an information security program. This program must be in writing and must outline various steps the business will take to protect personal information, whether that information is stored electronically or in paper documents. The regulations require numerous specific provisions that must be included in the program, such as a secure method of assigning and selecting passwords; encryption of all data containing personal information that is transmitted wirelessly or across public networks; and maintaining reasonably up-to-date firewall and malware protection.

Once they have their program in place, the next step businesses must take is to educate employees who handle personal information about their role in protecting that information. Additionally, businesses that retain third-party vendors such as payroll administrators or document disposal companies must take reasonable steps to ensure those vendors are properly safeguarding personal information.

Royal & Klimczuk, LLC continues to conduct seminars detailing businesses’ obligations under the new identity theft regulations and how businesses can come into compliance with the regulations. Details on these and other seminars can be found at: http://www.rkesq.com/upcomingseminars.html.

For more information about planning for compliance, please contact Amy B. Royal, Esq. or Kimberly A. Klimczuk, Esq. at (413) 586-2288. Amy and Kimberly may also be reached by e-mail at aroyal@rkesq.com and kklimczuk@rkesq.com, respectively.

The Equal Employment Opportunity Commission has issued a notice of proposed rulemaking regarding the definition of “Reasonable Factors Other than Age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The proposed rule attempts to address issues raised by recent cases decided by the U.S. Supreme Court, namely Smith v. City of Jackson and Meacham v. Knolls Atomic Power Lab.

In Smith, the Supreme Court held that the RFOA test is the appropriate standard for determining whether a practice that disproportionately affects older individuals violates the ADEA. The RFOA provision of the ADEA provides that actions that have an adverse impact on older individuals will not violate the statute as long as the adverse impact “is based on reasonable factors other than age.”

In Meacham, the Supreme Court held that an employer defending against a claim of disparate-impact age discrimination bears the burden of both producing and proving reasonable factors other than age that caused the disparate impact. In doing so, the Court overruled the employer’s argument (and the previous decision by the 2nd Circuit Court of Appeals) that plaintiffs in an ADEA case have the burden of showing that the adverse employment action was not based on reasonable factors other than age. The Court held that, since RFOA is an affirmative defense, it is the employer’s burden to prove that RFOA existed, not the employee’s burden to show that RFOA did not exist.

In light of these decisions, the EEOC proposes to revise its regulations to clarify the scope of the RFOA defense. Specifically, the proposed revision:

* explains that a “reasonable factor” is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances and is a factor that an employer exercising reasonable care to avoid limiting the employment opportunities of older persons would use;
* explains that whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts;
* provides a list of specific factors to be considered in determining whether a particular employment practice was reasonable, including: 1) whether the employment practice and the manner of its implementation are common business practices; 2) the extent to which the alleged reasonable factor is related to the employer’s stated business goal; 3) the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately; 4) the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers; 5) the severity of harm to older individuals; and 6) whether other options were available to the employer and the reasons the employer selected the option it chose;
* provides that the RFOA defense may only be used if the practice was truly based on an objective non-age factor;
* sets forth the following factors relevant to determining whether a factor is an objective non-age factor: 1) the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively; 2) the extent to which supervisors were asked to evaluate employee based on factors known to be age-based stereotypes; and 3) the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Before adopting final regulations, the EEOC will consider comments on the proposed rule until April 19, 2010. You may submit comments to the EEOC through the Federal eRulemaking Portal at http://www.regulations.gov; by faxing your comments to (202) 663-4114; or by mail addressed as follows:

Stephen Llewellyn, Executive Officer
Executive Secretariat, Equal Employment Opportunity Commission
U.S. Equal Employment Opportunity Commission
131 M Street, N.E.
Washington, DC 20507

The Connecticut General Assembly is considering legislation that, if passed, would allow employees to file discrimination and harassment claims directly in state court thereby circumventing the Commission on Human Rights and Opportunities altogether. The law presently requires that all discrimination and harassment claims are filed with the CHRO first. If an employee wants to pursue her claim in state court, she must then wait until 210 days have elapsed. Only then can the employee request a release of jurisdiction from the CHRO to sue in state court.

The new legislation also would significantly extend the timeframe for filing discrimination and harassment cases in state court to two years. Presently, the statute of limitations for filing a claim at the CHRO is 180 days. To read the full text of the bill, click here. We will be sure to provide updates as developments with the bill occur.

Simultaneous with the launch of the IRS’s new initiative on worker misclassification, Attorney General Martha Coakley’s Office announced, just this past week, that it reached settlements in four separate misclassification cases. In each of these cases, the Attorney General’s Office claimed that restaurant delivery companies had misclassified their drivers as independent contractors when they should have been classified as employees. Because of this misclassification, the Attorney General’s Office opined that these workers were deprived of certain wage/hour protections as well as other benefits that employees enjoy, such as unemployment insurance, workers’ compensation benefits and health insurance.

Beginning last June and continuing into the present, the Fair Labor Division of the Attorney General’s Office has ramped up its enforcement efforts, particularly with regard to misclassification. Specifically, the Attorney General’s Office has targeted various meal delivery companies in Massachusetts, focusing their investigations on the companies’ classification of workers.

The companies under investigation may have decided to settle their cases with the Attorney General’s Office to avoid the extremely steep penalties misclassification creates. Indeed, misclassification leads to the automatic imposition of triple damages under the Massachusetts Wage Act regardless of whether it was deliberate or accidental.

The AG’s full press release can be accessed at www.mass.gov/?pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2010_02_01_restaurant_settlement&csid=Cago