Labor and Employment Update - Summer 2010

NEW DOL REGULATIONS EXPAND DEFINITION OF PARENT FOR FMLA LEAVE PURPOSES

In late June, the United States Department of Labor (“DOL”) issued a guidance that interprets when an employee who is not the biological parent nor legal guardian may take leave under the Family and Medical Leave Act (“FMLA”) for the birth, adoption, bonding and care of a child.  

The FMLA defines a “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 FMLA regulations define “in loco parentis” as including those persons who have “day to day responsibilities to care for and financially support a child.” (Emphasis supplied). DOL’s guidance changes that definition because it states that a employee may be in loco parentis if it provides day to day care or financial support. The DOL gave several examples of where an employee may be entitled to FMLA leave: 

• Where an employee provides day-to-day care for his or her unmarried partner’s child, but does not financially support the child;

• Where an employee shares equally in the raising of a child with the child’s biological parent;

• Where an employee shares equally in the raising of an adopted child with a same-sex partner, but does not have the legal relationship with the child;

• Where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; or

• Where an aunt assumes responsibility for raising a child after the death of the child’s parents.

The DOL stated that employers are entitled to seek documentation from an employee to confirm the in loco parentis status and family relationship; however, the DOL guidance notes that a simple statement from the employee confirming the relationship should be sufficient. The DOL also noted that documentation such as the child’s birth certificate, insurance cards, or a court document would also be acceptable.

Similar to the early regulations provided by DOL for the FMLA, it is clear the department wants an expansive interpretation of the FMLA that will support non-traditional family circumstances. Employers must carefully consider requests for leave from employees who claim such status.    

Charles A. Ercole
cercole@klehr.com

SOCIAL MEDIA AND INTERNET USAGE POLICIES  

The popularity of social media websites like Facebook and My Space continues to grow and as a result, employers need to recognize the importance of maintaining and enforcing effective social media and anti-harassment policies. Strikingly, statistics show that one third (1/3) of employee time spent online is nonwork related. Moreover, misuse of the Internet is estimated to cost American corporations more than $85 billion dollars in lost productivity. With so much Internet use by employees, there is enormous potential for misuse and consequently, legal liability. For instance, one area of legal exposure for companies who do not maintain an Internet and email usage policy would be a sexual harassment or hostile work environment case based in part on harassing emails from a co-employee or supervisor. Without a clearly articulated policy, it is difficult to argue there are protective measures in place for employees, as well as a basis upon which to impose discipline in the event of a violation.  

The importance of having a clearly stated company policy for employee Internet and email use cannot be overstated. However, when creating a social media policy, employers must weigh the need to protect themselves, while at the same time keeping in mind the privacy rights of employees. For instance, although there is clear legal authority for employers to monitor employee email and Internet use, there are questions as to the appropriate amount of notice which should be provided to employees with respect to monitoring. However, if an employer maintains and distributes a policy which clearly states that employee communications will be subject to monitoring, courts have held there to be implied consent by employees to be monitored.  

When crafting a social media policy, there are certain directives which should always be included. Although this list is not exhaustive, every company policy on employee Internet and email use should require the following: 

• employee usage only which is responsible, inoffensive, and does not subject to the company to liability;

• the use of disclaimers blogs or postings to clarify that views expressed are not necessarily those of the company;

• prohibition on the disclosure of confidential company information or references to company clients without consent;

• a reminder that employees’ actions reflect the company and they are legally responsible for their actions;

• disallowance of Internet use if it interferes with work responsibilities;

• compliance with copyright laws and proper source citation;

• prohibition on the use of company logos or trademarks; and

• the right of the employer to monitor usage and block or filter information.

In summary, for employers to best protect against liability resulting from improper Internet and email use, efforts should be made to create a corporate environment that supports responsible Internet and email use. Creating that environment requires the development of clear Internet and email policies which are communicated to all employees and consistently enforced.

DEALING WITH WORKPLACE VIOLENCE

The recent shooting of fellow employees by a disgruntled worker in Connecticut and a decision in another case involving a sexual assault victim demonstrate that employers have an obligation to create a safe workplace. 

In the Connecticut case, the worker had been caught on videotape stealing the employer’s beer from his delivery truck. After a meeting with management and his union shop steward, the employee signed a letter of resignation and then asked to go the adjacent lunch room for a drink of water. He returned with two handguns, killed the shop steward and one of the members of management and proceeded to walk around the warehouse killing six other employees before shooting himself. Friends of the disgruntled employee said he was a great guy and showed no signs of violence prior to that day. 

While it is difficult to predict how employees are going to react to their termination, there are some steps employers should follow.  First, they should have in effect a zero tolerance workplace violence policy, demonstrating to employees that it will not tolerate any physical violence in the workplace. Second, when terminating an employee it is best to do it near the end of the workday and/or week if at all possible. Employers should also consider having security personnel nearby in the event an employee reacts badly. Lastly, while it may seem harsh, it is probably a best practice to have the employee escorted from the premises immediately following the termination meeting/exit interview.  

In another case involving violence between employees, a male employee sexually assaulted a female employee while off duty. Criminal charges were filed against the male employee. The company did not fire the male employee because the incident took place off duty and off premises and was not “related” to work.  

The assault victim had originally been promised that she would not have to work near the attacker.   The company changed its mind, however, and upon returning to work she was told that she could continue to work on the same floor with the attacker, move to a different floor, or she could resign. The federal court denied the company’s motion to dismiss the case and held that, based on these actions, the employer may ultimately be liable for retaliating against the victim.  

Employers should proceed with extreme caution in situations where workplace violence is or may be involved. If employers have any doubts about how to handle a particular situation, they should consult counsel and take the most conservative approach possible for the safety of all its workers. 

Charles A. Ercole
cercole@klehr.com