On October 1, 2013, the “Safe Act” becomes effective. The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault. The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.
The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault. The Safe Act covers:
- The employee,
- The employee’s child,
- The employee’s parent,
- The employee’s spouse,
- The employee’s domestic partner, or
- The employee’s civil union partner.
Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:
- Seek medical attention for, or recover from, physical or psychological injuries;
- Obtain servies from victim services organization;
- Obtain psychological or other counseling;
- Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;
- Seek legal assistance or remedies; or
- Attend, participate in, or prepare for court proceedings.
If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.
via Labor Employment Law Blog: New Jersey Provides Unpaid Leave to Victims of Domestic Violence.
The DOL published Administrator’s Interpretation No. 2013-1, which clarifies the expansion of FMLA. The DOL explained that the ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims, but also expanded the scope of FMLA coverage for children.
The DOL clarified the following.
- The DOL adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years or older. See 58 Fed. Reg. 31794, 31799 (June 4, 1993). The 2008 FMLA Final Rule explicitly adopts the ADAAA’s changes to the ADA’s definition of disability;
- The definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
- The determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
- A serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
- For a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.
In the Administrative opinion, the DOL provides examples.
via Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children | Orrick – Global Employment Law Group – JDSupra.
Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that a buyer of a company’s assets can’t rely on state law to keep a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets. This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.
The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law. Further, the court explained that employees do not have the power to stop an owner from selling the company. Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.
To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:
- Whether the successor had notice of the pending law suit;
- Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
- Whether the predecessor could have provided relief after the sale;
- Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
- Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.
via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.
On January 14, 2013, The Department of Labor issued a new interpretation that clarifies its position on the ability of employees to take leave under the FMLA to care for an adult child who has a disabling medical condition. You can read the DOL’s guidance for adult children here.
The FMLA allows employees to take leave to care for a son or daughter with a serious health condition. However, the scope of allowable leave narrows once an employee’s son or daughter reaches 18 years old. At that point, a parent is entitled to take FMLA leave when all four of the following occur:
(1) the adult child has a disability as defined by the ADA;
(2) the child is incapable of self-care due to that disability;
(3) the child has a serious health condition; and
(4) the child is in need of care due to the serious health condition.
Prior to this interpretation, there was some question as to whether the adult child’s disability must have developed before the child reached 18 years of age for the parent to be eligible for FMLA leave. The Department of Labor has now clarified that the age of onset of the disability is immaterial so long as the child at issue has a disability under the ADA.
This interpretation reflects the impact of the ADAAA’s expansion of the definition of “disability” on the FMLA and will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities.
via New Department of Labor Interpretation on FMLA Leave for Adult Children | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.
The U.S. Department of Labor released a new Employee Guide to the Family and Medical Leave Act on June 27, 2012. The new guide, available online and in print, includes easy-to-follow and informative charts that map out the FMLA leave process and a summary of how coverage and eligibility are determined.
View the Slideshow
Listen to the Archived Webinar
Download the FMLA Guide
via Adjunct Law Prof Blog: US DOL Releases New Family and Medical Leave Guide.
The DOL has updated several FMLA forms. The forms that have been updated are as follows:
WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition
WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition
WH-381: Notice of Eligibility and Rights & Responsibilities
WH-382: Designation Notice
WH-384: Certification of Qualifying Exigency For Military Family Leave
WH-385: Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
via Adjunct Law Prof Blog: DOL Issues New FMLA Forms.
On March 20th, the Supreme Court issued it’s opinion in Coleman v. Md. Ct. App., holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA’s self-care provisions.
The FMLA creates a private right of action for equitable relief and damages “against any employer (including a public agency) in any Federal or State court.” 29 USC 2617(a)(2). The FMLA states that an employee is entitled up to 12 weeks of unpaid leave per year for:
- [“family-care provisions” (A), (B), and (C)] (A) the care of a newborn son or daughter; (B) the adoption or foster-care placement of a child; (C) the care of a spouse, son, daughter, or parent with a serious medical condition; and
- [“self-care provision” (D)] (D) the employee’s own serious health condition when the condition interfere with the employee’s ability to perform at work.
The Coleman case deals with (D), dubbed the “self-care provision” by the Supreme Court. The Supreme Court, written by Justice Kennedy, ruled that the waiver of States’ immunity was not present at the self-care provision because the legislature was not concerned with sex-based discrimination with respect to the self-care provision; unlike in the family-care provisions. See, e.g., Nevada Dep’t of Human Resources v. Hibbs, 538 US 721 (2003) (upholding waiver of States’ immunity with respect to the family-care provision (C) because States had family-leave policies that differentiated on the basis of sex).
The Supreme Court relied on amicus curiae brief citing to the BLS which showed that when the FMLA was enacted, 95% of full-time state and local employees were covered by paid sick leave plans and 96% of such employees enjoyed short-term disability protection. The Supreme Court concluded based on the record that men and women were out on medical leave approximately equally. Citing H.R. Rep. No. 101-28, pt. 1, p. 15 (1989). Further, the legislative history revealed a concern for economic burdens and not sex discrimination. Citing S.R. Rep. No. 103-3, pp. 11-12 (1993); H.R. Rep. No. 101-28, p. 23 (1989). Consequently, the Supreme Court dismissed the case on the grounds that the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination.
The Supreme Court also shot down the argument that the self-care provision is a necessary adjunct to the family-care provisions. Justice Kennedy highlighted that Congress made no findings or received any testimony that suggested that the availability of self-care leave equalized the expected amount of FMLA leave men and women will take. Justice Kennedy pointed that there was no evidence that women took more leave than men, or that employers assumed that women would take more leave time than men.
Lastly, the Supreme Court rejected petitioner’s argument regarding the disparate impact effect the leave restrictions would have on women. The Supreme Court noted that the provision must be directed at a pattern of constitutional violations.