Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

In a news release last week, the U.S. Department of Labor announced the Wage & Hour Division had issued an Administrator’s Interpretation (No. 2010-3) clarifying the definition of “son or daughter” as it applies to an employee standing “in loco parentis” to a child under Section 101(12) of the Family and Medical Leave Act (FMLA).

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter, . . .[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,. . . and to care for a son or daughter with a serious health condition.” See 29 U.S.C. § 2612(a)(1)(A) - (C). 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, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

“It is the Administrator’s interpretation that the 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. . . . Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.”

If 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 a statement indicating the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations of in loco parentis where there is no legal or biological relationship.

Employers may have more “parents” working for them than they think. Not only biological mothers and fathers qualify for FMLA leave, but other adults may qualify in loco parentis as well. If you are an employer and you aren’t sure if an employee qualifies for FMLA leave, request documentation or a statement from the employee about the familial relationship.

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I had the pleasure of spending yesterday afternoon and this morning in lovely St. Cloud, Minnesota at the League of Minnesota Cities 2010 Annual Conference and Marketplace. Marylee and I had a wonderful time talking to various City Managers, City Administrators, Mayors and City Council members about what is happening in their cities and how they are addressing the economic challenges their cities are facing. My firm’s mission is to assist public and private sector employers with their workplace issues during these challenging times.

The conference was very well organized with lots of valuable sessions for attendees on topics including: LGA cuts, cost cutting measures, city budgets, and dealing with unions to name just a few. We are already looking forward to next year’s conference in Rochester.
 

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Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).

The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.

The Court acknowledged, we

“…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . .Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”

The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”

Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:

1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.
 

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Just like Dorothy following the yellow brick road to Oz battling lions, tigers, and bears, the path to determining the right classification for summer employees, interns, independent contractors, and volunteers can be hazardous. Mischaracterizing a worker can lead to sanctions and fines for Employers. Due to current economic challenges, concerns are being raised that Employers are misclassifying workers as interns, volunteers and independent contractors to save from paying wages, benefits, and taxes. The Department of Labor is paying close attention and auditing workplaces.

There is a presumption anyone performing work for a “for-profit” enterprise is an employee.  In Minnesota, the nature of the employment relationship is determined by using the same tests, and in the same manner as employee status is determined under both workers’ compensation and unemployment insurance law. Compensation of Minnesota employees is determined under Minn. Stat. § 181.722, Subd. 3, and the federal Fair Labor Standard Act.  Dorthy Gale had to stay on the yellow brick road to try to avoid the wicked witch and her flying monkeys.  As an Employer the path to proper classification of workers will avoid the ire of the Department of Labor.   Correctly assessing a  worker as an employee, student/intern, independent contractor, or volunteer is critical.   

Employee: An employee is someone who works for hire in the services of another. The existence or non-existence of an employment relationship between two parties is a question of fact.   To the extent the facts lead to a conclusion the parties have an employment relationship, the Employer is responsible for state and federal taxes, workers’ compensation, and unemployment insurance. 

Student/Intern: The use of student/interns in the workplace has increased over the years. This group of workers is currently the subject of close scrutiny by the Department of Labor.  Student/interns are not considered employees under both state and federal law, if their use in the workplace generally passes six tests offered by the Department of Labor. The tests are:

1. The training experience is similar to what is provided at school;
2. The training experience is for the benefit of the student/interns;
3. The student/interns do not displace regular employees;
4. The employer providing the training receives no immediate advantage from the activities of the trainees;
5. Student/interns are not necessarily entitled to a job at the conclusion of the training; and
6. The employer and the student/interns understand the work is unpaid training. (Note: a reasonable stipend may be permitted)

 Independent Contractor: Independent contractors are hired to perform special services of a limited scope and duration, and they typically perform the same services for a variety of businesses. The standards in Minnesota to be considered in determining whether or not an individual is an employee or an independent contractor include: 

1. The right to control the means and the manner of performance;
2. The mode of payment;
3. The furnishing of materials or tools;
4. The control of the premises where the work is done; and
5. The right of the employer to discharge the individual. 

Generally, the more control an Employer has over the individual performing the work, the work site, and the nature, quality, and manner in which work is performed, the more likely the relationship is an employer-employee relationship vs. an independent contractor arrangement.

Volunteer: Volunteers freely offer services to non-profits, charitable organizations, and churches at no charge without expectation of compensation. “…Any individual who renders service gratuitously for a nonprofit organization,” is not considered an employee. Minn. Stat. § 177.23 Subd. 7 (7).   Volunteers at a non-profit organization are not subject to workers’ compensation or unemployment benefits. Someone performing work on behalf of a for-profit enterprise, is presumed to be an employee.

Properly classifying workers, including summer workers, is important to your business. Minn. Stat. § 181.722 prohibits the misrepresentation by an Employer of the nature of an employment relationship with its workers, including not requesting a worker enter into an agreement, or sign a document which results in misclassification of a worker’s status. An Employer may be subject to penalties for improperly classifying workers. Be sure to intentionally follow the yellow brick road to avoid the lions, tigers and bears along the way. OH MY!

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Do you have employees? Do your employees enjoy sports? Well, this week there is a trifecta of major sporting events going on. Game 6 of the Stanley Cup Finals is televised tonight, tomorrow is Game 4 of the NBA Finals and Friday is the kick-off concert for the World Cup. It seems there is something for every sports fan. What does this mean for your business? Well, that depends on how you address workplace distractions.

Mr. Daniel Schwartz with the Connecticut Employment Law Blog has some excellent points about the opportunities and distractions which can accompany various sporting events, in particular this year’s World Cup, which will be televised between 8:00 a.m. – 5:00 p.m for the next month.

I agree with Mr. Schwartz suggestions and recommend you plan ahead.

• Remind employees about your policy on using computers for “personal use.”
• Review your PTO or vacation policy and decide how much flexibility you are able to use to address employees’ requests for time off.
• Encourage employees to watch during their lunch hour, and allow some flexibility in scheduling breaks and lunch hours to accommodate game time.
• Encourage professional behavior in the workplace.

These tips can also be applied to any other high profile televised events which may be distracting to your employees and affect productivity at your workplace.
 

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