"Son or Daughter" Under the FMLA Now Defined to Include Nontraditional Family Members

The U.S. Department of Labor (DOL) recently issued an interpretative guidance regarding the definition of son or daughter under the FMLA as it applies to an employee who is not the legal or biological parent of a child (see DOL clarification at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm).

The FMLA entitles an employee 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 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 under 18 years of age; or incapable of self-care because of a mental or physical disability." The FMLA regulations further define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.

Under the new guidance, the DOL takes the position 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. Under the DOL's interpretation, for example, when an employee provides day-to-day care for his or her unmarried partner's child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child. The DOL also noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the son or daughter of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. According to the DOL, neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. So, for example, when 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. Labor Secretary Hilda Solis issued a statement along with the guidance, stating, "The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT [lesbian, gay, bisexual and transgender] families, are protected by the FMLA." (see DOL clarifies FMLA definition of "son and daughter" (06/22/2010) http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm)

The DOL also takes the position that when 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 statement of the family relationship. However, the employee need only provide a simple statement attesting to the family relationship in situations such as when there is no legal or biological relationship.

This guidance is significant because it broadens the definitions under the FMLA to one in which an employee provides either day-to-day care or financial support (not necessarily both) when the employee intends to assume the responsibilities of a parent with regard to a child.

Is Your Company Prepared to Comply With the New FCRA Regulations, Including a Required Audit?

Does your company provide its employees' information to outside agencies for payroll purposes? Or maybe your company uses an outside agency to provide pre-employment background check screenings such as criminal background checks?

If so, your company may be subject to the FTC's new federal regulations (see http://www.ftc.gov/opa/2009/07/facta.shtm) pertaining to the FCRA, which took effect on July 1, 2010. These regulations impose new responsibilities on employers who provide consumer credit information to consumer reporting agencies.

Although the regulations typically apply to holders of consumer credit information such as a bank or financial services company, under the new regulations employers that provide payroll and other employee-related information to consumer reporting agencies will be deemed to be a "furnisher" of information and, thus, will be covered by the FCRA and subject to the new regulations.

The new regulations (see http://bit.ly/c8PIic) impose additional duties and responsibilities to furnishers of information to consumer reporting agencies. Previously, under the old regulations, the employee's only recourse was to dispute the information with the credit reporting agency itself. This right still exists. However, under the new regulations, the regulations allow the employee to challenge the accuracy and integrity of the information received from the credit reporting agency with the furnisher of the information (i.e., the employer itself). This situation is referred to as a "direct dispute." Should the employee bring forth a dispute of the information to the employer, the new regulations require that the employer undertake an investigation. If the investigation finds that the information reported was inaccurate, the employer must notify and provide corrections to the credit reporting agency.

In addition to the new direct dispute rules, the new regulations require that furnishers of information audit their current policies and procedures pertaining to the furnishing of consumer information. The regulation also specifies that the policies and procedures be appropriate to the nature, size, complexity, and scope of each furnisher's activities. The regulations contain an appendix of guidelines, which includes a list of specific components of policies and procedures that a furnisher "should address."

In addition to these new regulations under the FCRA, please be advised that your state may impose additional requirements concerning employees' consumer information. You should make sure to confirm whether you are covered and take steps to comply with these regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.