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| HR and the Law in the News July 2010, Volume 9, Issue 7 |
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| HR and the Law in the News July 2010, Volume 9, Issue 7 |
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"The Kid is Not My Son..." No, I'm not referring to a phrase in the song "Billie Jean" by Michael Jackson. I am referring to a U.S. Department of Labor Administrator's Interpretation published June 22nd that is intended to provide clarification to the definition of a covered child under the Family and Medical Leave Act's (FMLA). Here's the point. You know an FMLA covered employer (one that has employed at least 50 employees for 20 or more weeks in this or the preceding calendar year) must provide an eligible employee with up to 12 work weeks of job protected leave to care for the employee's child. The FMLA defines a child to include, "...a child of a person standing in loco parentis..." So what does that mean?! Let's say an employee comes to you and ask for FMLA leave to care for the child of the employee's domestic partner. Your employee is neither the biological parent, nor the adoptive parent nor is the child a legal ward of your employee's. If your employee is otherwise eligible (has worked for your company for a total of 12 months; 1,250 hours in the last 12 months; and works at a site that employs at least 50 employees at or within 75 miles of the worksite), must you grant this request for FMLA leave? According to the Interpretative Letter the answer may be, "Yes." Here are some of the key points raised in the letter:
Next Steps? The letter provides that, "Where an employer has questions about whether an employee's relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship." The letter does not indicate who may or should be the author or creator of such documentation. Thus, it appears the employee may simply write and submit a letter to his or her employee affirming that s/he does stand or intends to stand in loco parentis to the child in question. The letter also provides that, "In contrast, an employee who cares for a child while the child's parents are on vacation would not be considered to be in loco parentis to the child." Interestingly, however, the DOL Press Release seems to indicate that short-term situations may qualify citing as an example, "a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer." Stay tuned as the law, regulations and interpretations will continue to evolve in 2010. Hot Hits!! Education Corner July's Public Seminars & Presentations No public presentations scheduled in July. Since 2000, Ms. Walters has given 23 presentations at national SHRM conferences, mostly recently at the SHRM Annual Conference in San Diego on June 28th. Is your professional or trade association looking for an engaging and dynamic speaker to address employment or HR issues? Wanna sneak peek? See a brief video clip of Ms. Walters in action. Recent & Upcoming Client Training Programs "Conflict Management: Strategies for Maintaining Positive Client Relations" "Managing for Performance Improvement" NEXT WEBCAST! July 28, 2010 10:00 - 11:00 a.m. EST "WHOOPS! Avoiding Legal Liability in Your Recruiting Process" Join this interactive program (presented at SHRM's Staffing Management Conference to better-than-average ratings in April 2010) as we review proactive practices and pitfalls to avoid in sourcing, testing and interviewing applicants as well as making a job offer. Click here and then click on the "Upcoming" tab to register (still just $35 per person). This webcast is pre-approved by HRCI for 1.0 general credit hour
Walters Featured in SHRM Video For the fourth time in three years Ms. Walters was recently featured in a SHRM Video regarding legal development in state law trends related to wage and hour issues. Not Just Your Average Speaker! In the last ten years, Ms. Walters has been a regular and repeat presenter at SHRM's various national conferences giving 23 separate presentations. Once again, following the 2010 SHRM Employment Law & Legislative Conference. Ms. Walters received ratings higher than the average for all speakers, receiving an overall rating of 4.4 as compared to the average rating of 4.1. Wanna sneak peek? See a brief video clip of Ms. Walters in action. Merely General Crudity? On June 18th, the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC, SC) overturned a lower court's decision and found that remarks directed towards a female employee by her immediate supervisor were "not merely general crudity but a series of graphic remarks of a highly personal nature" sufficient to raise a triable issue of fact as to whether a hostile environment had been established in violation of Title VII of the Civil Rights Act. EEOC v. Fairbrook Medical Clinic, P.A. The supervisor had made a series of remarks including sexual comments about women, as well as references to his own and others' private body areas. In defense, it was argued that he made those remarks to numerous employees, male and female, that other employees and patients made similar comments and it was "merely general crudity." This court disagreed. The Clinic's harassment policy directed employees to report sexual harassment to their immediate supervisor. If that was ineffective the policy directed employees to report harassment to the partners of the clinic and ultimately to an HR representative or a representative of the EEOC. The supervisor in this case was the employee's immediate supervisor and the sole owner; there were no other partners. The employee did report her concerns to her supervisor and the officer manager. But no investigation or corrective action was taken. Lessons Learned? No time or budget for training? FiveL Company now offers web-based training that can offer greater flexibility, lower costs and reduced time as compared to on-site training programs. Check out a brief sample. Click here then on "Recorded Sessions" on the left and scroll down to "SAMPLE Inclusive Workplace Training." Then contact FiveL Company for a quote or more information. One client recently gave these services an overall rating of "Excellent." Spotlight Carol Fletcher, HR Director for Physicians Management Group recently rated the overall training services provided for her management team members in, "Managing for Performance Improvement" as "Excellent" and wrote, "We were very pleased with the presentation and all the feedback from those who attended was extremely positive. We look forward to setting up more sessions with FiveL." Thank YOU Carol! Are you planning on-site or web-based training for your staff and/or management team members? Visit the website or call FiveL Company today for an estimate. Bright Light Do you currently offer your employees telecommuting options or are you considering it? Have you measured or wondered about the ROI of such programs? Consider a recent study published in the Wall Street Journal indicating that employee who telecommute report being able to work 19 additional hours per week while still feeling able to maintain a satisfactory work-life balance! This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly. |
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