The U.S. Court of Appeals for the Seventh Circuit recently held that a nursing home maintained a racially hostile working environment by accommodating its residents’ requests to be treated by white-only personnel and by terminating the plaintiff, a black nursing assistant, for an alleged workplace infraction. Chaney v. Plainfield Health Center

Brenda Chaney worked for Plainfield Health Center (Plainfield) as a certified nursing assistant. Among Plainfield’s residents was an individual who did not want assistance from black CNAs. Plainfield detailed employees’ duties on an assignment sheet that Chaney and other employees received each day when they arrived at work. The sheet included a column with miscellaneous notes about each resident’s condition. In the case of one resident, the sheet instructed staff members that the resident “Prefers No Black CNAs.” Chaney also presented evidence of racially tinged comments and epithets from co-workers. While these ceased after Cheney complained, a co-worker continued to remind Chaney that certain residents were off limits because she was black. Just three months after she was hired, Plainfield terminated Chaney’s employment.

Chaney filed a charge with the EEOC, and subsequently filed suit in U.S. District Court in Indianapolis. The district court concluded that the note on the plaintiff’s daily assignment sheet advising her of the “Prefers No Black CNAs” was reasonable given the facility’s good-faith belief that ignoring a resident’s preferences would violate Indiana’s patient-rights laws, and found that Chaney failed to refute Plainfield’s stated reasons for terminating her employment. Chaney appealed.

The Seventh Circuit reversed the district court’s decision. It rejected Plainfield’s argument that its policy of honoring its residents’ racial preferences was akin to honoring a patient’s preference for same-sex health providers, which courts have found permissible. The Court also rejected Plainfield’s argument that because it is both a medical provider and permanent home for residents, the rights of residents must be honored before considering its Title VII obligations to employees, holding that Title VII does not allow an employer to discriminate based upon race in order to accommodate the racial biases of its customers. Further, the Court rejected Plainfield’s claim that its policy protected black employees from residents’ racial harassment, stating that the facility had several other options available to it to address its patient’s racial preferences, such as warning residents before admitting them of the facility’s nondiscrimination policy or assigning staff based on race-neutral criteria that minimized the risk of conflict. Finally, the Court found that Chaney had presented sufficient evidence that Plainfield’s grounds for firing her were insincere, and that her termination was racially motivated.

The issue confronted in this case remains a common one, particularly for employers in the health care sector, where employees must have direct and often very intimate contact with members of the public. While it can be difficult to balance the rights and preferences of patients and residents with those of employees, this case makes it clear that when a patient’s racial preference conflicts with Title VII, the employer’s obligation to provide a discrimination-free workplace under Title VII takes precedence.

Article courtesy of Worklaw Network firm Franczek Radelet (www.franczek.com).

Many of the most aggressive aspects of the Health Care Reform Act don’t kick in until 2014. What follows are some of the most important aspects to consider until then.

1. Starting in September 2010 all existing health insurance plans (unless grandfathered) must:
   • Prohibit lifetimes limits
   • Prohibit rescissions
   • Restrict annual limits
   • Include limitations on excessive waiting periods
   • Offer a choice of providers
   • Include a requirement to provide coverage for non-dependent children up to age 26; before 2014, this requirement is limited to non-dependent children who do not have an employer offer of coverage.
   • Plans must pay “first dollar” coverage on all preventative measures and not require cost savings.
2. Employers must provide “reasonable break time” and a private, non-bathroom place to express breast milk during the workday, up until the child’s first birthday. Note: Determine if your current set up will satisfy the rules. If you have less than 50 employees and the accommodation will cause an undue hardship—document it!
3. Small employers (less than 25 employees, averaging less than $50,000 per employee) may be eligible for tax credits.
4. In 2010, small businesses (those with 25 or fewer employees) may be eligible for a tax credit up to 35 percent of employer health insurance costs. The actual amount varies based on employer size and employees’ average income.
5. Required W-2 Reporting – Beginning in 2011, employers will be required to report the value of employees’ health benefits on W-2 forms.
6. 2011 – Requires individual and small group market insurance plans to spend 80% of premium dollars on medical services. Large group plans will have to spend at least 85 percent.
7. 2011 – Employers can apply to receive reimbursement for benefits provided to early retirees age 55-64. $5 billion has been allocated to the program, and it is first-come, first-served.
8. 2011 – No pre-existing condition exclusion for children under 19 (applicable to all enrollees in 2014) is permitted. This is applicable to insured and self-insured plans and grandfathered plans.
9. 2011– No reimbursement of over-the-counter drugs unless prescribed.
10.   2011 – Companies with more than 50 employees must report:
    • Whether they offer their full-time employees and their dependents the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan.
    • Waiting periods.
    • Lowest cost options in the plan.
    • Employer’s share of each option.
    • Number and names of full-time employees receiving coverage.
11.    As of January 1, 2011, employers with calendar plan years starting six months after enactment will, among other requirements, be prohibited from using:
    • Lifetime maximums.
    • Restrictive annual maxis.
    • A bar on the participation of adult children if the children are younger than 26 (with a corresponding tax exclusion for adult children).
    • Pre-existing conditions exclusions for children under 19 years old.
    • Discriminatory eligibility or benefit provisions in insured group health plans (although this does not apply to grandfathered plans).
12.    In 2012, employers must disclose the cost of the benefits they provided in 2011 on the annual W-2 form.
13.    In 2012, covered employers will be required to submit reports on the quality of care in their health plans to the HHS, although this does not apply to grandfathered plans. Plan administrators will be required to provide plan participants with a uniform summary of benefits (based on standards developed by HHS) for all plans by March 23, 2012.
14.    2013 – Caps on the amount that can be directed to flexible spending account (FSAs) will kick in as of     January 1, 2013. FSAs will be capped at $2,500 per employee. The $2,500 limit will be indexed for inflation for years after 2013. Medicare taxes increase as of January 1, 2013. Costs for retiree drug expenses for which subsidies are received cease to be deductible for the plan sponsor and also become taxable on that date.
15.    In 2013, by March 1, employers must notify employees about:
    • State health insurance exchanges.
    • If the employer’s plan meets minimum coverage requirements.
    • Information about subsidies available for exchange based on coverage.

Again, this is geared to giving you a head start. Chances are, your broker and insurance company will be well versed in assisting with these legal requirements.

We are big fans of the Motley Fools. The folks at the Motley Fool like the idea of a financial health day so much, they held a companywide event this spring. We thought it was such a great idea we got permission to share this with all our HR That Works Members. In this special report, they explain what they did and how you can sponsor such a shindig at your office. Even if your financial health day is a solo affair in the comfort of your home, use the checklist in this bonus PDF report to identify important tasks you can accomplish.

As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court.  Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice.  While his majority percentage may suggest to some a willingness to comprise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term.  Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.
 
This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests….

To read the entire article, please go to http://www.franczek.com/assets/attachments/Supreme%20Court%2009-10%20Review.pdf.

Article courtesy of Worklaw Network firm Franczek Radelet (www.franczek.com).

Here’s a podcast I listened to on HBR regarding HR.

Harvard Business IdeaCast 190: How to Make HR Relevant
Featured Guest: Susan Cantrell, fellow at the Accenture Institute for High Performance and coauthor of Workforce of One: Revolutionizing Talent Management Through Customization. Copyright 2010 Harvard Business School Publishing

Podcast: Play in new window | Download

Many new mothers often give up on breastfeeding when they return to work, but they may not have to any more. The Wage and Hour Division has just released guidance detailing a provision in the recently passed Patient Protection and Affordable Care Act that requires employers to provide nursing mothers the space and time to express milk in the workplace. The law, which amended the Fair Labor Standards Act, states that nursing mothers must receive a reasonable amount of unpaid break time as well as a private place other than a bathroom for their nursing needs.

 http://www.dol.gov/whd/regs/compliance/whdfs73.pdf

The DOL has released Interim Final Rule on Coverage of Preventive Services 

Regulation: http://www.ofr.gov/OFRUpload/OFRData/2010-17242_PI.pdf
Fact Sheet: http://www.healthcare.gov/law/about/provisions/services/background.html
Recommended Preventive Services: http://www.healthcare.gov/center/regulations/prevention/recommendations.html

The Texas Dental Association has distributed $900,000 in back pay awards to two former employees who were fired in relation to a petition complaining of poor management and unfair treatment.

The Association also agreed to post a notice informing employees that they cannot be fired for acting together for mutual benefit and protection.

The case grew out of a meeting of employees in 2006 that resulted in a petition to delegates of the association, which represents more than 7,000 dentists in Texas. The petition, signed by 11 employees using aliases, asked for an outside investigation of management and working conditions at the association’s Austin headquarters.

The delegates declined to authorize an investigation, and the association director initiated an investigation that included a forensic study of office computers. One employee who had helped write the petition was fired after a fragment of it was found on his computer. The second employee, a supervisor who refused to divulge the names of employees involved in the petition, was also fired.

An Administrative Law Judge found the first employee was unlawfully fired for engaging in protected activity, and that the supervisor was fired for refusing to engage in unlawful activity by divulging the employees’ identities. The Judge’s ruling was upheld by the National Labor Relations Board in Washington. The employer then appealed the NLRB decision to the Fifth Circuit Court of Appeals, and the NLRB filed for enforcement of its decision.

While the case was pending, the settlement was reached through the Board’s Alternative Dispute Resolution Program with Fifth Circuit mediation. The two former employees waived their rights to reinstatement and the association agreed to provide a neutral reference.

“This settlement was made possible by the hard work of many NLRB employees, including trial attorney Robert Perez, compliance officer Charlene Donovan, Deputy Assistant General Counsel Margaret Gaines and Attorney Jeffrey Burritt,” said Martha Kinard, director of the NLRB Regional Office in Fort Worth. “We hope it sends a message to employees that they have a right to act together to improve their working conditions, with or without a union.” www.nlrb.gov

“The things to do are: The things that need doing, that you see need to be done, and that no one else seems to see need to be done.”

- Buckminster (“Bucky”) Fuller, Inventor and futurist

This issue discusses:

• Editor’s Column: Faking It
• FMLA Clarification Ensures All Caregivers the Right to Family Leave
• Ex-Felons: What’s Their Story?
• Healthcare Reform Concerns
• Word of the Month: “Ethos”
• Privacy Rights in Personal E-mail
• Failure To Perform Eliminates Right to FMLA Leave
• Failure To Investigate Does Not Give Rise to Stand-Alone Retaliation Claim
• The NLRA and Federal Contractors
• Clamping Down on Credit Histories

We have also provided you with the Form of the Month

Please click here to access the newsletter in PDF format.

Editor’s Column: Faking It

I just listened to a great Freakonomics podcast, in which the authors discussed “faking it:” Everything from saying, “I’m sorry” to “I love you,” as well as “Yes, I’m happily married with kids and I play golf” in order to land a sales job. Of course, there’s a fine line between innocence and manipulation when we fake it. We figure that it’s OK to lie about family life because if it helps you to get the job, you know you’ll perform when you get there and then your employer will have no regrets. So what’s the harm? We say we’re sorry, even though we don’t mean it because we still want the other person to like us – and, in the end, we want to be able to like ourselves.

One of my favorite questions when I’m recruiting someone is, “What felt unfair to you in your last job?” This is where “faking it” meets the road. How we respond to this question provides a good measure of our integrity or personal culture. Will we always answer with 100% honesty? Really? Even if doing so could hurt you or someone else? Is brutal honesty always worth the price paid?

Of course, where to draw this line is never the same for two people. In large measure, it’s about having enough self-confidence to handle things in a way that would make you proud – to perhaps mitigate, but at the same time accept, any discomfort the honest answer might cause.

Unfortunately, there’s a lot of faking it in the workplace, caused by any of Maslow’s Hierarchy of Needs: Survival, security, belonging, ego gratification, and self-actualization. It’s easy to see how we might lie for survival purposes (“I really need this job”). However, it’s more difficult to justify faking it for self-actualization (“This little white lie might spur this person toward positive action”).

As the podcast noted, everybody fakes it. In the end, nobody is responsible for the consequences of our faking it except us. Even if the outcome is positive, it can put a dent in our soul, somehow cheapening the experience. The end, of course, does not always justify the means.

So what lesson can we learn? Create a work environment that diminishes the need for faking it. It’s about communicating expectations, ethics, vision, and the other variables that come in to play. In Four Arguments, Don Miguel Ruiz says that we need to be impeccable with our word – without exception. As a manager, we don’t BS people hoping we can gain their loyalty or productivity. On the other hand, if people aren’t performing on the job, we need to be honest about saying so, despite the fact that this might not feel fair to the other person. As employees, we can be honest about our commitment to an organization, our work ethic, and our long-term plans. We can make sure that we don’t place ourselves in situations or with companies where we can’t be honest.

One of the podcast authors asked what would happen if we had a “National No Faking It Day,” where people decided to be brutally honest for 24 hours. In response, the other authors predicted “a jump in the homicide rate.”

In the end, the authors thought that, in order to survive, we need to fake it. For example, it probably wouldn’t make sense for a manager to say exactly what’s on her mind at the moment she’s upset with someone she dislikes. We might not want to speak truthfully about how we feel about a client while they’re in front of us. Or we might not want to punch that guy in the nose – even if he deserves it.

Finally, bear in mind that we have been conditioned to believe that we should “fake it until we make it” by pretending that we like an unpleasant person or situation until we really do or the problem goes away.

FMLA Clarification Ensures All Caregivers the Right to Family Leave

All families, no matter what they look like, are protected by the Family and Medical Leave Act (FMLA). “Workplaces have changed over the last ten years and how we view families has evolved as well,” said DOL Secretary Solis. That message was solidified when the department announced this week that an employee who assumes the role of caregiving for a child is entitled family leave regardless of their legal or biological relationship to the child. This clarification of the law is a victory for many non-traditional families, including families in the lesbian, gay, bisexual, and transgender community, who have often been denied family leave. The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves.

Read the News Release here.

Read the Administrator’s Interpretation here.

Ex-Felons: What’s Their Story?

In my workshops, I joke that it “only takes one felon to ruin a day.” This isn’t funny, especially if such a person has victimized you. Unfortunately, despite the recommendation that employers should do criminal background checks on all employees, most still don’t, either because they think that bad things only happen to other companies or they claim that they don’t have the time or money. This is a huge mistake. Remember, felons have sold drugs, defrauded, robbed, assaulted or killed people, embezzled, or engaged in many other criminal acts. I’m not saying that you should never hire ex-felons. I have some printing company clients who run their presses 24/7. Most of their third shift have criminal records. At least they know what type of person they’re dealing with!

Remember this too: If you use a temporary firm, recruiter, leased employee, etc. make sure that whoever provides you with this person has done their criminal background checks.

Consider using HR That Works partner www.globalhrresearch.com for your criminal background checks.

Healthcare Reform Concerns

In their recent Webinar on Healthcare Reform, attorneys Doug Seaton and Emily Ruhsam focus on nine key changes that take effect on January 1, 2011 (for calendar year health plans):

1. Non-grandfathered plans must provide for certain internal appeals procedures (including an external review process).
2. Non-grandfathered plans must cover certain preventative services (i.e., immunization and infant screenings) without cost sharing.
3. Non-grandfathered, fully insured plans must undergo non-discrimination testing (currently a requirement for self-insured plans only). This is similar to the top-heavy discrimination testing for 401(k) plans.
4. Plans that offer dependent coverage must offer coverage until age 26 (grandfathered plans must cover such dependents only if the dependent is not eligible for other employer-sponsored coverage).
5. Prohibits pre-existing condition limitations for children under 19.
6. Abolishes lifetime limits on minimum essential benefits.
7. Prohibits “unreasonable” annual limits on minimum essential benefits.
8. Prohibits recession (cancellation) of participants.
9. Prohibits reimbursement of over-the-counter medications (without a physician prescription through a Health Flexible Spending Account, Health Reimbursement Account, Health Savings Account, or Archer Medical Savings Account).

HR That Works members can watch the Webinar and read the complete report on HR That Works.

Word of the Month: Ethos

The fundamental character or spirit of a culture; the underlying sentiment that informs the beliefs, customs, or practices of a group or society; dominant assumptions of a people or period.

What is the ethos of your company?

Privacy Rights in Personal E-Mail

In Stengart v. Loving Care, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in e-mails she sent to her attorney via a personal, password protected e-mail account on a company computer. As part of her employment, Loving Care issued Ms. Stengart a laptop computer. Loving Care’s electronic communications policy stated that the company had a right to review and access all material kept on its electronic media systems at any time, with or without warning. The policy also allowed employees to use its servers and computers for occasional personal email or other use.

Ms. Stengart used her company-issued laptop computer to access her personal Yahoo! E-mail account and to correspond with an attorney regarding her allegations of harassment and discrimination by Loving Care. She eventually resigned her position and sued Loving Care. The company hired a computer specialist to retrieve files from Ms. Stengart’s laptop. The specialist found her correspondence with her attorney, which the laptop had automatically saved in a “cache” folder of temporary Internet files. Loving Care argued that Ms. Stengart’s e-mails were not privileged or confidential because she had no expectation of privacy in communications on its media systems.

The New Jersey Supreme Court disagreed, holding that Loving Care’s communications policy was too broad to encompass private, password protected e-mail communications, especially where the content was attorney-client communication. Loving Care’s failure to include personal, password protected e-mail in its electronic communications policy specifically, as well as its allowance of occasional personal use created a reasonable expectation of privacy. Although recognizing a company’s ability to enact policies that protect its assets, reputation, and productivity, and to ensure compliance with company policy, the court held that Loving Care had no legitimate purpose in reviewing the content of attorney-client communication.

Employer Tip: Although this is a “narrow” decision that applies only in New Jersey to communication with counsel, it sends a clear warning to all employers about diving too deeply into employee e-mails, etc. Employers should also heed a warning that they “specifically include personal, password protected e-mail in its electronic communications policy,” and beware of any “allowance of occasional personal use creating a reasonable expectation of privacy.”

Article courtesy of Pettit Kohn Ingrassia & Lutz.

Failure to Perform Eliminates Right to FMLA Leave

The U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) has held that an employee does not have the absolute right to commence FMLA leave. In Krutzig v. Pulte Home Corp., the plaintiff, who at the time was on a performance improvement plan, requested FMLA so that she could have surgery on her foot. On the same day that the plaintiff requested leave, a customer filed a complaint with a company vice-president against the plaintiff. The next day, Pulte Home Corp. terminated the plaintiff, based on her failure to address the issues raised in her performance improvement plan and the complaint made by the customer. The plaintiff sued, claiming that her termination was in retaliation for taking FMLA leave and that her employer interfered with her right to take leave under the FMLA. However, the company vice-president who terminated the plaintiff testified that he was not aware that the plaintiff had requested leave at the time he made his decision. Based on these facts, the trial court granted summary judgment in favor of the employer and dismissed the plaintiff’s lawsuit.

The Court of Appeals affirmed the trial court’s decision, holding that “[a]s with the FMLA right to reinstatement, the FMLA right to non-interference with the commencement of leave is not absolute, and if dismissal would have occurred regardless of the request for FMLA, an employee may be dismissed, preventing her from exercising her right to leave or reinstatement.” The Eleventh Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that “an employee who requests FMLA leave has no greater protection against her employment being terminated for reasons unrelated to an FMLA request than she did before submitting her request.”

Failure to Investigate Does Not Give Rise to Stand-Alone Retaliation Claim

The U.S. Court of Appeals for the Second Circuit (covering Connecticut, New York, and Vermont) has ruled that an employer’s deliberate failure to investigate a complaint of discrimination does not constitute a stand-alone act of retaliation. In Fincher v. Depository Trust and Cleaning Corp., the plaintiff alleged that she complained to a human resources manager about what she believed was racially biased treatment toward black employees in her department. The plaintiff claimed that the human resources manager told her that he was not going to open up an investigation of her claim of race discrimination. The plaintiff resigned and filed claims under federal, state, and local laws for retaliation.

The Court of Appeals affirmed summary judgment in favor of the employer, finding that the employer’s alleged failure to investigate discrimination was not in itself a “materially adverse action” which could subject the employer to retaliation liability. The court noted that under the seminal case Burlington N. & Santa Fe Ry. Co. v. White, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The court held that an employee’s knowledge that her employer has declined to investigate her complaint does not ordinarily constitute a threat of further harm.

The NLRA and Federal Contractors

The U.S. Department of Labor (DOL) has issued a final rule that requires federal contractors and subcontractors to post a notice advising employees of their rights under the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector. This notice advises employees of their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer. It also lists examples of illegal conduct by employers and unions, and provides contact information to the National Labor Relations Board. Federal contractors and subcontractors must post the prescribed notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted, both physically and electronically. Employers that fail to comply with these notice requirements may be subject to sanctions, including suspension or cancellation of the contract and debarring them from future federal contracts. For more information and to obtain copies of the prescribed notice, visit the DOL Web site.

Above articles courtesy of Worklaw® Network firm Shawe Rosenthal.

Clamping Down On Credit Histories

For many years, we’ve recommended that employers conduct credit histories on all job applicants and post-hire in specific categories. The fact is, someone with a poor credit history is a greater risk than someone who has a good record. However, to protect workers impacted by the recession, Oregon, Washington, and other states have begun passing laws that narrow the scope of these inquiries. The EEOC is also raising numerous concerns in this area. The Oregon statute limits the inquiry to cases in which a person’s credit is “substantially job-related,” which is defined as:

• An essential function of the position at issue requires access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit. Financial information customarily provided in a retail transaction includes information related to the exchange of cash, checks, and credit or debit card numbers.
• The position at issue is one for which an employer is required to obtain credit history as a condition of obtaining insurance or a surety or fidelity bond.

Click here to see the Oregon statute.

Here’s what the EEOC says:

“Pre-Employment Inquiries and Credit Rating or Economic Status
“Inquiry into an applicant’s current or past assets, liabilities, or credit rating, including bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question.”

Here’s some data gathered in an effort to encourage these regulations.

Here’s a suit filed by the EEOC. Since at least 2001, the EEOC said, Freeman has rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions. The EEOC lawsuit charged that this practice has an unlawful discriminatory impact because of race, national origin, and sex, and is neither job-related nor justified by business necessity.

Click here to see the FTC site on credit rating.

The Bottom Line: Asking for credit backgrounds poses risks for employee and employer alike. Make sure that you work with a company such as www.globalhrresearch.com that helps keep you abreast of the rapidly changing legal requirements in this area.

“Son or Daughter” Defined for FMLA Enforcement

On June 22, the U.S. Department of Labor issued an interpretation letter (No. 2010-3) clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”), as it relates to whether leave may be taken by employees raising children “in loco parentis” (where they lack a biological or legal relationship to a child). In determining whether an employee is eligible for FMLA leave, the interpretation provides that “the employer may require the employee to provide reasonable documentation or statement of 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 also states that “regulations do not require an employee who intends to assume the responsibilities of a parent 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 to a child.”

The letter specifically mentions its application to unmarried partners and same-sex partners, and adds that the fact that a child has a biological parent at home or has both a mother and a father does not prevent a finding that the employee with a non-biological relationship is eligible for FMLA leave. 

To read the Opinion Letter go to http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf.

Form of the Month

Education Reimbursement Agreement (PDF)

Training is the lifeblood of many companies today; everything from extensive on-boarding to paying for expensive MBA programs. To protect from an employee getting educated and then immediately leaving, many companies use a Reimbursement Agreement such as this one. One caveat: Make sure that your state law and contract allows you to offset any monies owed from a final paycheck. Some states, such as California, do not allow a “self-help” remedy. You would have to go to court to enforce the terms of the contract.

(HR That Works Users can access this form in Word format by logging on to the site).

Podcast

Please click here to listen to the July Compliance and Culture Podcast.

Podcast: Play in new window | Download