Human Resource & Labor News
www.agc.orgAugust 19, 2010 / Issue No. 4-10
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On the Inside
Labor Relations
AGC Persuades Corps of Engineers to Withdraw PLA Requirement
Year-to-Date Collective Bargaining Results in Low and No Increases in Wages and Fringe Benefits
AGC Union Contractors Exchange Views with Carpenters and Operating Engineers General Presidents at New England Regional Meeting
NLRB Finds Regional Carpenters Council was Bound to National Construction Agreement and Plan for Settlement of Jurisdictional Disputes
Supreme Court Invalidates Decisions of Two-Member NLRB; Senate Confirms Two New NLRB Members
Legal Compliance
DOL Revises Interpretation of "Clothes," Changing Time Considered Compensable
Labor Department Clarifies Definition of "Son or Daughter" in FMLA
Labor Department Revises Child Labor Law, Leaves AGC-Supported Apprentice Exemption in Place
DOL Issues Guidance on Breaks for Nursing Mothers Under the FLSA
Homeland Security Department Revises Rule on Electronic Processing and Storage of I-9 Forms
OFCCP Plans to Strengthen the Affirmative Action Obligations Related to Individuals with Disabilities
Employee Benefits
Temporary Pension Relief Legislation Enacted
COBRA Subsidy Expires; Extension Seems Unlikely
HR Professional Development
AGC HR and Training Conference to Highlight Link between Coaching, Workplace Performance and Corporate Results
Labor Department Clarifies Definition of "Son or Daughter" in FMLA

On June 22, 2010, the U.S. Department of Labor's (DOL) Wage and Hour Division, through an Administrative Interpretation (AI), clarified the definition of "son or daughter" as it relates to the Family and Medical Leave Act of 1993 (FMLA).  The AI clarifies the rights of certain caregivers in a parental role, such as relatives and same-sex partners, giving them access to  protected leave to care for or bond with a child as outlined in the FMLA.

As it relates to children, the FMLA generally requires that companies with 50 or more employees entitle workers up to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.  The definition of "son or daughter" under the FMLA 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."  While it was presumably the intent of lawmakers for the term "in loco parentis" to include children who were not in traditional nuclear households (i.e., biological mother and father), the law left many unanswered questions for non-traditional families with children.

According to Administrator's Interpretation No. 2010-3, the FMLA regulations "do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provided both day-to-day care and financial support in order to be found to stand in loco parentis to a child."  While whether an employee stands in loco parentis to a child will depend on particular facts, the AI lists several examples of possible cases of in loco parentis, including: 

  • a grandparent who is assuming ongoing responsibility for raising a child because the parents are incapable of providing care;
  • an aunt who assumes responsibility for raising a child after the death of a child's parents;
  • an employee who provided day-to-day care for his or her unmarried partner's child (with whom there is no biological relationship) but does not financially support the child;
  • 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; and
  • divorced and remarried parents where both the biological parents and stepparents will all four have equal rights to take FMLA leave to care for the child.

Another example is shared in a statement by labor secretary Hilda L. Solis, where an uncle who is caring for a young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave.

The AI specifically mentions that an employee who cares for a child while the child's parents are on a vacation would not be considered to be in loco parentis to the child.

For more information on the FMLA, visit the Wage and Hour Division's FMLA web page or AGC's Labor and HR Topical Resources web page.
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