Legal Bites

The health care reform legislation passed in March included an amendment to the Fair Labor Standards Act that now requires employers to provide breaks to nursing mothers to pump breast milk for a one year period after giving birth to a child. The U.S. Department of Labor recently issued a fact sheet detailing employers’ obligations under this amendment to Section 7 of the FLSA.

Under the amended law, qualifying employees are entitled to a reasonable amount of break time to express milk as frequently as required by the nursing mother. The employer must provide its nursing employee with a private space, other than a bathroom, that is shielded from view, free from intrusion by others, and functional as a space in which to express milk.

This new requirement applies only to employees who are not exempt from the FLSA’s overtime pay requirements. Employers do not need to compensate nursing mothers for breaks taken to express milk, but if they already provide compensated breaks, a nursing mother who uses that time to express milk must be compensated like any other employee.

The U.S. Department of Labor has launched a new investigation of wage law violations related to the disbursement of DOL ordered overtime reimbursement by the Upper Crust pizzeria chain, which has 17 Massachusetts restaurants. Last year, the DOL ordered Upper Crust to pay over $340,000 to 121 workers for its failure to pay at the time-and-a-half rate for work over the 40 hour overtime threshold. This investigation comes on the heels of a lawsuit by former cooks accusing Upper Crust of deducting the compensation for the overtime reimbursement from their paychecks.

The example of Upper Crust should serve as a reminder of the importance of compliance with federal wage and hour laws in the restaurant industry. Restaurants should be particularly careful to maintain thorough records of wage history in order to demonstrate past compliance in the event of a complaint and/or investigation.

A recent Massachusetts Supreme Judicial Court opinion reaffirmed the limits of employer liability for employees’ actions outside the scope of employment. In Lev v. Beverly Enterprises-Massachusetts, the Court affirmed summary judgment in favor of the employer, ruling against the plaintiff who had been hit by a car driven by an intoxicated Beverly employee who was driving home in his own car after meeting at a restaurant with his supervisor to socialize and discuss work-related issues, during which time he consumed alcohol. The plaintiff had brought claims that (i) Beverly was vicariously liable for the employee’s negligence based on their employment relationship and (ii) that Beverly was liable under traditional negligence theories because it owed a duty to the plaintiff.

The plaintiff argued that Beverly should be vicariously liable for the employee’s negligence on the grounds that the employee was acting within the scope of his employment when he became intoxicated while meeting with his supervisor. The SJC rejected this argument, citing the precedent that travel to and from employment falls outside the scope of employment. When he was driving, the employee was no longer serving his employer and the employer is not liable for his actions.

The SJC also held that Beverly owed no common law duty to the plaintiff, rebuffing the plaintiff’s argument that the employer’s special relationship to its employees and ability to exercise control over them carried with it a duty to take reasonable steps to prevent the employee from consuming alcohol and from driving while intoxicated. The Court reasoned that an employer cannot be expected to foresee and take affirmative action to protect all potential plaintiff’s from an employee’s bad conduct. Based on its conclusion that Beverly owed the plaintiff no duty, the Court declined to credit Beverly’s substance, drug, and alcohol abused policy as setting forth a duty of care standard.

Overall, the SJC clearly confirmed the limits on the ability to bring actions alleging an employer’s liability for employees “actions that harm plaintiffs based on a reluctance to impose “a potentially onerous burden” on employers to monitor their employees” off-the-job conduct.

The Wage and Hour Division of the U.S. Department of Labor recently issued guidance on the definition of  “son or daughter” aimed at members of non-traditional families seeking FMLA eligibility to take approved leave for the birth or adoption of a child, to care for a newborn or newly-placed child, or to care for a child with a serious health condition. This guidance provides an expansive definition of the parent-child relationship by including circumstances where there is no biological or legal parent-child relationship, but the employee has a caregiving relationship, nonetheless.

The FMLA language 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 [. . .].” The DOL guidance states that an employee may stand in loco parentis to a child if s/he has either day-to-day responsibilities to care for the child or provides financial support. The in loco parentis analysis is a fact-specific one that looks to the age of the child, the degree to which the child is dependent on the employee, the amount of support provided by the employee, and the degree to which the employee exercises duties regularly associated with parenthood. Neither the FMLA nor regulations restrict the number of “parents” a child may have for FMLA purposes.

Where an employer is unsure if an employee’s relationship to a child supports FMLA eligibility, the employer may require reasonable documentation of the family relationship, which can be satisfied by a simple statement asserting that the requisite caregiving relationship exists for in loco parentis situations for which there is no legal documentation.

In Skinner v. Salem School District, Judge Laplante of the District of New Hampshire recently considered whether one may bring Title II ADA employment discrimination cases based on disability discrimination or if such claims must be brought under Title I. The employer school district moved for a judgment on the pleadings based on its argument that Title II of the Americans with Disabilities Act could not be used by its former employee to bring an employment discrimination claim. The Court denied the employer’s motion for lack of support for the principle that the statute clearly excludes employment discrimination claims.

The Court commented on the current circuit split on this issue. The 11th Circuit has held that the DOJ’s regulatory construction allowing ADA employment discrimination cases deserves sufficient deference to permit such cases to go to trial. The 9th Circuit has rejected this view, stating that the overall construction and purpose of the ADA forecloses the view that Congress intended Title II to apply in the employment context. The 1st Circuit has not taken a clear view on the issue. As a result, Judge Laplante refused to grant the motion for judgment on the pleadings due to the ambiguity of the law as it currently stands, even though he expressed an affinity for the 9th Circuit view. This leaves the door open for ADA employment discrimination cases to proceed to trial in the 1st Circuit, at least until the “ambiguity” is resolved by a Supreme Court or circuit ruling on the issue.