Yesterday, the Department of Labor issued its third Administrative Interpretation since jettisoning the decades-long practice of issuing Administrator Opinion Letters based on specific facts. This time, the Interpretation concerns the FMLA instead of the FLSA. In it, the DOL reminds the public that the FMLA is available not only to parents due to the birth, adoption or serious medical condition of their own biological, adopted , step, or foster children (as well as their legal wards), but also to individuals who stand "in loco parentis" to the child. Then, the DOL informs the public that "in loco parentis" can include an unlimited number of unmarried heterosexual and same sex roommates, significant others, partners and other relatives of the biological parents. Administrator's Interpretation No. 2010-3. There has already been a significant amount of litigation of whether grandparents can take FMLA leave to care for grandchildren within their care (when the FMLA does not provide grandparent leave). The DOL states that additional guidance was needed "regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child." However, the determination remains dependent upon all the facts and circumstances and the new Administrative Interpretation does little to clarify the situation and could conceivably cover family babysitters under the loose standard announced yesterday. Yet, while the specific recognition that the FMLA can extend to unmarried partners who care for children has generated significant media attention, the real legal controversy involved with the DOL's new interpretation is that it disregards the regulatory standard for "in loco parentis" in order to expand who is covered by the FMLA.
"Black's Law Dictionary defines the term in loco parentis as "in the place of a parent." The DOL recognizes that "[w]hether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors" which can include "the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised." The FMLA regulations provide that "in loco parentis" means someone "with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary." 29 C.F.R. § 825.122(c)(3) (emphasis added). However, in yesterday's Interpretation, the DOL chose to deliberately ignore the regulation's minimal standard:
It is the Administrator's interpretation 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. For example, where 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 and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child's biological parent would be entitled to leave for the child's birth because he or she will stand in loco parentis to the child. Similarly, 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, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child. (emphasis added).
In other words, even though the FMLA regulations provide that an employee cannot be "in loco parentis" unless they have daily responsibilities to both care for AND financially support the child, the DOL believes that the a person is sufficiently "in loco parentis" as long as they provide daily care for the child even though they are NOT also financially supportive.
Moreover, the DOL finds that there is no restriction on how many individuals could qualify for "in loco parentis" with respect to a single child:
It should be 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. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where 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. (emphasis added).
The DOL seems to confuse the fact that the regulation specifically covers step-parents (of which there can only be a maximum of four at any given time) with the concept that there is no numerical limitation under the new DOL standard for how many "in loco parentis" a child could now have. This is particularly troubling when a person's "in loco parentis" status can change weekly and requires little proof:
Where 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. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship. . . .
While the DOL indicates that the "in loco parentis" should live with the child, that requirement is not made explicit – and thus – could include babysitters who provide daily care (albeit not babysitters who only periodically take care of the child while the parents are travelling). The DOL is specifically silent of the status of grandparents and other relatives where an extended family lives together and all family members share child-raising responsibilities. Are all grandparents, aunts, uncles, cousins, girlfriends, boyfriends, etc. included in the "in loco parentis" when they are all sharing in the daily care of the children?
Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child's parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child's parents are on vacation would not be considered to be in loco parentis to the child.
While the DOL rushed to expand FMLA coverage to political allies, it unnecessarily jettisoned controlling regulatory language in issuing the Interpretation by expanding FMLA coverage to any regular caregiver with only minimal responsibilities for the child. A more focused interpretation of the existing regulation could have achieved the same political result without violence to the minimal regulatory requirements.
The cynical readers among you may wonder why the DOL thinks that it can overrule a regulation passed through the formal comment and rulemaking process under the Administrative Procedures Act – and contained in the Code of Federal Regulations – with a mere Administrative Interpretation. The Interpretation seems oblivious to Christensen v. Harris County, 529 U.S. 576 (2000) where the Supreme Court found that a similar administrative interpretation by the DOL was not entitled to judicial deference because there had been no formal prerequisites to its issuance.
In any event, the DOL contends that its Administrative Interpretations are entitled to the same judicial deference as Administrative Opinion Letters rulings (issued for decades) and may be the basis of an employer’s good faith defense under 29 U.S.C. § 259 to an allegation that it has violated the FLSA. The FLSA comes into play because employers may deduct periods of FMLA leave which are less than a full day as long as the employee qualifies for FMLA leave. If the employee does not qualify for FMLA leave, the employer must pay exempt/salaried employees for the full day even if the employee took some time off for covered purposes. If, for instance, an exempt employee is granted “in loco parentis” leave under this Interpretation, but then later challenges the deductions from his or her paycheck as violating the FLSA – and maybe even the employee’s exempt status – then the employer could avoid liquidated damages, longer limitations period and liability altogether by citing reliance on this Interpretation.
Of course, the more salient issue for employers is how this new Interpretation will be abused by chronic malingerers who have found ingenious ways to avoid ever working overtime or on weekends or on holidays by creative manipulation of the FMLA. (No conscientious or reasonable employer has any particular interest in denying FMLA leave to a genuine in loco parentis employee who needs it; it is only a genuine need to control FMLA abuse which prompts dismay at Interpretations with no enforceable standards to control their abuse). In my deep, dark past, I had an FMLA question arise about what an employer was to do when two potential fathers sought time off for the birth of the same child. Both thought that they were the biological father and one was the current boyfriend of the mother, while the other was not. I have even had situations arise where the biological parents both lived with different significant others as well as their parents – creating a situation where there were the possibility of two parents and six other people simultaneously claiming in loco parentis. If the child has asthma or even the flu, this extended family could force their employers to grant them time off work under this Interpretation for every major family celebration and holiday as long as they could claim that the child was sick (intermittently, of course) and required their care. This could be true even if the employer had heard their employee state any number of times that s/he disliked the child, refused to spend money on the child or wanted to send the child to boarding school for the indefinite future.
Thus, conservative and weary employers may elect to rely instead on the clear language of the FMLA regulation and put it on the plaintiff to convince a judge to give more weight to the Interpretation than the regulation despite the Supreme Court’s instruction in Christensen. While Interpretations may be persuasive authority and create the basis of a good faith defense for certain employers, Interpretations still do not carry the force of law like statutes, regulations passed under the APA or court decisions as far as the Christensen Supreme Court is concerned:
Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters–like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law–do not warrant Chevron-style deference. See, e.g., Reno v. Koray, 515 U.S. 50, 61 (1995) (internal agency guideline, which is not “subject to the rigors of the Administrative Procedur[e] Act, including public notice and comment,” entitled only to “some deference” (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U.S. 244, 256—258 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 157 (1991) (interpretative rules and enforcement guidelines are “not entitled to the same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers”). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise §3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), but only to the extent that those interpretations have the “power to persuade,” ibid. See
Arabian American Oil Co., supra, at 256—258. As explained above, we find unpersuasive the agency’s interpretation of the statute at issue in this case.
. . . .
Seeking to overcome the regulation’s obvious meaning, the United States asserts that the agency’s opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U.S. 452 (1997). In Auer, we held that an agency’s interpretation of its own regulation is entitled to deference. Id., at 461. See also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous–it is plainly permissive. To defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of compelled compensatory time, Auer deference is unwarranted.
Thus, the even more cynical readers may ask if the Obama Administration were sincere about wanting to make this Intepretation stick and survive judicial challenge, why not open the rule to revision through the formal (albeit expensive and lengthy) APA rulemaking process? Couldn’t this new Interpretation be changed as easily as it was implemented if there is not a formal regulation adopted? Is it not more likely that a court will refuse to defer to the Interpretation in that it contradicts the clear requirements of the regulation without any explanation of an ambiguity or need for clarification?
The DOL indicates that this Interpretation addresses only FMLA leave and not military caregiver or military exigency leave which are governed by a different regulatory standard.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
