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Family and Medical Leave Act
2013 Legal Update For SHRM Maui

Yesterday, a co-worker and I flew to (the beautiful island of) Maui to do a presentation for the SHRM Maui Educational Foundation.  The presentation lasted about 2.5 hours, and we spoke on three topics:  (1) 2013 Legislative Update; (2) 2013 FMLA update and (3) the new I-9 form.

I think the program went really well.  The attendees were all very welcoming, attentive, and in good spirits.  They were also really engaging and asked a lot of great questions.  In addition, we were told the attendance for our presentation was the highest that SHRM Maui has ever had.  It looks like we’ll be partnering up with SHRM Maui on an annual basis to do similar presentations in the future.

Oh, and the venue – a banquet room at the Kahili Golf Course – was also really nice.  In fact, next time I’m out there, I might even try to squeeze in a round of golf…

Later this summer/fall, I’ll be traveling with another co-worker to Maui, Kauai and the Big Island to do a presentation on the interconnection between the various “leave laws,” which include the ADA, FMLA, Workers’ Comp, and TDI.  As any HR professional knows, managing employees’ leave is oftentimes a very difficult and confusing task, because of all the different laws that may apply.  This program will be open to both HEC members, as well as non-HEC members.  I hope you can join us.

New FMLA Poster and Notices Must Be Used Starting Today

Last month, the US Department of Labor (“DOL”) issued its Final Rule on the FMLA regulations, which took effect today.  Along with the changes in the regulations, employers are required to use a new poster and new FMLA forms to reflect those changes.

The new FMLA poster is available (from the Department of Labor’s website) by clicking on the following image:

The new forms are also available by clicking on the following links:

Finally, the DOL has issued a side-by-side comparison of the (former) 2008 regulations and (current) 2013 regulations.  You can view the DOL’s chart here:  Side-by-side Comparison.

Employer Has Burden Of Proving Legitimate Reason For Denial Of Reinstatement Under FMLA

Just yesterday, the Ninth Circuit Court of Appeals ruled that “when an employer seeks to establish that he has a legitimate reason to deny an employee reinstatement [under the FMLA], the burden of proof on that issue rests with the employer.”

Specifically, in Sanders v. City of Newport (9th Cir., March 17, 2001), the court addressed a situation where an employee was denied reinstatement after taking leave under the FMLA.  In its decision, the court first noted that the FMLA creates two interrelated rights for employees:  (1) the right to use a certain amount of leave for protected reasons and (2) the right to return to his or her job or an equivalent job after using protected leave.  Thus, under the FMLA, an employee is entitled to take leave with the expectation that he will return to work after the leave ends.

This court also noted that this right to leave, however, is not absolute.  Rather, the employee’s right extends only to what he would have been entitled to had he not taken any leave.  For example, an employee would not have a right to reinstatement if he would have otherwise been laid off due to a reduction in force during his leave period, or if he is unable to perform the essential functions of his job because of a physical or mental condition after exhausting his FMLA leave.

The court then ruled that – when an employee is denied reinstatement – the burden of proof is on the employer to establish a legitimate reason for denying reinstatement.  For example, the burden would rest on the employer “to establish whether the employee can perform the essential functions of the job.”  The court’s decision was based on language from the Code of Federal Regulations stating that “[a]n employer must be able to show, when an employee requests restoration, that the employee would not otherwise have been employed if leave had not been taken in order ot deny restoration to employment.”

By reaching this conclusion, the court has joined the 8th, 10th and 11th circuits in placing the burden of proof on the employer in denial of reinstatement cases under the FMLA.

You can read a copy of the court’s decision here.

FMLA and the Successor in Interest

In Sullivan v. Dollar Tree Stores (9th Cir. 2010), the Ninth Circuit Court of Appeals recently addressed the issue of when is a new employer a “successor in interest” to a former employer under the Family and Medical Leave Act (“FMLA”).  In this case, the plaintiff worked as a store manager for a company called “Factory 2-U.”  Her company, however, filed for Chapter 11 bankruptcy, and the bankruptcy court approved the sale of Factory 2-U’s existing leasehold on its stores to a company called “Dollar Tree.”  Apart from the leasehold interest, Dollar Tree did not purchase any assets of Factory 2-U.

The plaintiff started working at Dollar Tree, and while she was eight months into her new job, her mother began to experience serious health problems.  Dollar Tree provide the plaintiff with some leave time, but not with FMLA leave. The plaintiff eventually sued Dollar Tree to try to recover the full amount of lost wages she would have been entitled to under the FMLA.

The main issue before the courts was whether Dollar Tree was a “successor in interest” to Factory 2-U.  If not, the plaintiff would not be entitled to FMLA leave because she had worked at Dollar Tree for just eight months (FMLA requires a period of employment of 12 months, and 1250 hours, to qualify for leave.)

The court applied the “successor in interest” test that had been issued by the U.S. Department of Labor (“DOL”).  The factors to be considered under the DOL’s test include (1) substantial continuity of the same business operations; (2) use of the same plant; (3) continuity of the work force; (4) similarity of jobs and working conditions; (5) similarity of supervisory personnel; (6) similarity in machinery, equipment, and production methods; (7) similarity of products or services; and (8) the ability of the predecessor to provide relief.

Based on these factors, the court ruled that Dollar Tree was not a successor in interest to Factory 2-U, and was therefore not required to provide the plaintiff with FMLA leave.

You can read the court’s opinion here.

FMLA Leave To Care For Child With Same-Sex Partner Permitted

The U.S. Department of Labor (“DOL”) has issued an opinion letter clarifying that the definition of “son or daughter” for purposes of FMLA leave applies to children of same-sex couples.

In its letter, the DOL noted that many children in the United States today do not live in traditional or nuclear families with their biological mother and father.  Therefore, the definition of “son or daughter” includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward or a child of a person standing in loco parentis.”

In loco parentis is commonly understood to refer to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.  The FMLA regulations define in loco parentis as including those day-to-day responsibilities to care for and financially support a child.  However, the regulations do not require an employee to provide both day care and financial support in order to be considered in loco parentis.  Rather, one or the other is sufficient.

According, the DOL opined, “an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”

The DOL’s opinion letter can be viewed here.