Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

On June 22, 2010, the United States Department of Labor (“USDOL”) Wage and Hour Division issued Administrator’s Interpretation No. 2010-3 (the “Interpretation”), which clarifies the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”), as it applies to employees standing “in loco parentis,” or “in the place of a parent,” to a child. A copy of the Interpretation can be found here.

The FMLA entitles an eligible employee to take up to twelve (12) weeks of job-protected leave upon the birth of a son or daughter, the placement of a son or daughter with the employee for adoption or foster care, or to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)-(C); 29 C.F.R. § 825.200. The FMLA defines son or daughter as including a child of a person standing in loco parentis who is either under 18 years old or older than 18, but incapable of self-care due to a disability. In this Interpretation, the USDOL noted that the FMLA regulations define “in loco parentis” as including those with day-to-day responsibilities to care for and financially support a child. See C.F.R. § 825.122(c)(3). However, the Administrator announced in its interpretation of the regulation that either day-to-day care or financial support may establish an in loco parentis relationship, so long as the individual intends to assume the responsibilities of a parent with regard to a child; it is not necessary for an employee to establish both in order to be found to stand in loco parentis. The Administrator further acknowledged that a determination of in loco parentis status to a child is to be made on a case-by-case basis.

Employers should consult counsel with any questions regarding the proper application of FMLA guidelines and/or regulations in order to ensure appropriate action is taken with respect to each unique familial circumstance.

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High school and college students often are willing to work for little or no pay during the summer months to bolster their resumes. Businesses see this as a good opportunity to get some extra help around the office. However, private sector, "for-profit" employers need to be aware that they are required to pay at least minimum wage and overtime to summer help unless these internships or training programs meet the following criteria:

1. The internship is similar to training which would be given in an educational environment;
2. The internship is for the benefit of the trainees;
3. The interns do not displace regular employees, and work under close supervision of existing staff;
4. The employer derives no immediate advantage from the activities and, on occasion, its operations may actually be impeded;
5. The interns are not guaranteed permanent positions at the conclusion of the internship; and
6. The employer and interns understand beforehand that the internship is unpaid.

See U.S. Dept. of Labor, Wage and Hour Division, Fact Sheet #71.

The determination whether an internship or training program meets all six requirements depends upon all the facts and circumstances of each program. In addition to owing unpaid wages and potentially hefty fines, unpaid programs that do not meet all of the Department of Labor's criteria could lead to legal problems involving workers' compensation, employee benefits, unemployment insurance and federal and state taxes.

Employers should structure unpaid internships to meet the above criteria. Also consider having a written agreement with the interns outlining the nature of the work and that the program is being operated to provide a learning experience for the interns. If in doubt about compliance, employers should pay at least minimum wage and overtime to avoid legal problems because the Fair Labor Standards Act, the federal statute that covers minimum wages and overtime, as well as state wage and hour laws, define “employ” very broadly.

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In City of Ontario v. Quon, decided on June 17, 2010, the United States Supreme Court held, for the first time, that the City of Ontario’s review of a police officer’s text messages was reasonable and, therefore, did not violate the Fourth Amendment. In Quon, Jeff Quon repeatedly exceeded the character limit on his work-issued pager. The City therefore audited his text messages, and uncovered hundreds of personal messages, some of which were sexual in nature. Although the Court declined to address whether Quon had a reasonable expectation of privacy in his text messages, the Court held that, even if he did, a public employer may reasonably search an employee’s property at work where the search is non-investigatory, work-related or incident to an investigation of work-related misconduct, without violating the Fourth Amendment.

Here, the Court found that the search was reasonable and “justified at its inception,” as the City’s review stemmed from an investigation as to whether the character limit was sufficient to meet the City’s needs. In addition, the City’s review of Quon’s text messages was reasonable as an “efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” Finally, the Court found that the review was not “excessively intrusive” because the City only reviewed two (2) months of messages, although more were available.

As with cases arising in the private sector and impacting issues of technology in the workplace, Quon also provides several instructive lessons for employers. First, employers must be reminded that it is crucial to develop and distribute comprehensive workplace communications policies, which make clear that employees’ communications through technology are not private. In addition, employers are well advised to only review such employee communications where there is a legitimate, work-related reason to do so.

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