WWYLD – 03/20/18 – Is There a Timeline for “Temporary?”

A few weeks ago, Angela Snyder wrote about the DOL’s new guidance regarding interns. In her article, Angela discussed considerations related to intern pay. Another issue that often arises with regard to interns is employment status—should the intern be hired as a “regular” or “temporary” employee? That’s the topic of this week’s WWYLD.

Question: Our handbook indicates that a “temporary” employee is someone who works for the organization for three months or less. A manager has asked if we can hire an employee on a temporary basis for a 4-month engagement. Are there any legal restrictions on what constitutes “temporary” employment?

In general, “temporary” is defined by the employer not the law. Legally, employees are “at will” (which means employment can be terminated at any time by either the employer or the employee) unless a contract or agreement assures otherwise.  A temporary status or probationary period does not affect the at will status.  But, there are other legal considerations for temporary employees. Let’s start there and finish with some operational considerations.

The Affordable Care Act (“ACA”): Many employers have policies that state that certain benefits, including health insurance, are not made available to temporary employees. The ACA requires that employers (with 50 or more employees) offer health insurance that is affordable and provides minimum value to their full-time employees. The ACA states that a waiting period of up to 90 days is permissible. Therefore, if a full-time (defined as working 30 or more hours/week), temporary employee remains employed beyond 90 days, he or she is legally entitled to benefits, regardless of company policy. This is one reason many employers limit temporary employment to three months or less.

Title VII: It is lawful and nondiscriminatory to provide different benefits and privileges to different employees based on employment status (regular vs. temporary, exempt vs. non-exempt, full-time vs. part-time). But an employer could open itself up to claims of discrimination if employees doing similar jobs are categorized differently and, therefore, receive different benefits and privileges. Let’s say, for example, that employee A and employee B have the same job title and both have 6-months of tenure. Employee A is “regular” and employee B is “temporary.” The employer only provides benefits to regular employees with at least 90 days of tenure. Employee B could assert a claim that he is being retained at the temporary status to avoid providing benefits, and this is an adverse action that relates to the employee’s membership in a protected class. Again, this is not to say that temporary employment, or that providing different benefits to temporary employees, is unlawful or discriminatory. Employers must ensure they have legitimate non-discriminatory business reasons for classifying employees as they do.

Operational Considerations:

  • Ensure you have well-documented policies regarding temporary employees. Consistently apply the policy.
  • Ensure you have well-written job descriptions that clearly outline the duration of the specific assignment.
  • Before the job is posted, clearly document the business need for hiring an employee on a temporary, rather than regular, basis.
  • Monitor the duration of the assignment to ensure it aligns with policy and the job description. Where the assignment goes beyond the scope of the policy/job description, consider changing the employment status—moving to regular employment or moving to termination.
  • Monitor the hours worked to ensure compliance with the ACA.


Questions about employment status? Please reach out.

WWYLD – 03/16/18 – Time Off Under FMLA to Care for an Adult Child

Question:  An employee is requesting time off to be with her adult daughter who is having a procedure done at the hospital.  Could the employee be entitled to FMLA leave?

This employee could be entitled to FMLA leave, but the employer may request additional information to definitively determine entitlement.  The employee’s eligibility for FMLA leave will depend on the following factors:  1) whether the employee’s adult child has “serious health condition” 2) whether the employee’s adult child is “incapable of self-care;” and 3) whether the employee is “needed to care for” the child.

To be eligible for FMLA leave, an employee must work for a covered employer and:

  • have worked for that employer for at least 12 months; and
  • have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
  • work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

1)  Serious Health Condition

An eligible employee is entitled to up to a total of 12 workweeks of unpaid leave in a 12-month period:

  • for the birth of a son or daughter, and to care for the newborn child;
  • for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
  • to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition; and
  • when the employee is unable to work because of a serious health condition.

A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

2)  Incapable of Self Care

A “child” is defined as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or is 18 years of age or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence.

An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living or instrumental activities of daily living.

  • The FMLA regulations include the following as examples of “activities of daily living”:
    • Caring appropriately for one’s grooming and hygiene
    • Bathing
    • Dressing
    • Eating
  • The FMLA regulations provide the following examples of “instrumental activities of daily living”:
    • Cooking
    • Cleaning
    • Shopping
    • Taking public transportation
    • Paying bills
    • Maintaining a residence
    • Using telephones and directories
    • Using a post office

3)  Needed to Care For

To be eligible for leave, the employee will be “needed to care for” her daughter.  The employee would be considered “needed to care for” her daughter if the daughter is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or unable to transport herself to the doctor/treatments, because of a serious health condition. “Needed to care for” also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient care or home care.

Suggested Steps

With regard to #1 and #2, the employer can ask that the employee obtain documentation from the daughter’s medical provider that answers the following:

  • Dates associated with the care the daughter requires;
  • Appropriate medical facts about the condition;
  • A statement of the care the daughter requires

With regard to #3, it is permissible to ask the employee for a brief explanation of why the employee is needed to care for her daughter.  This information would come from the employee herself and does not need to be supported by a request/recommendation from a medical provider.  If this information was shared in previous communications, those communications between the employee and the employer could be adequate to support #3.

Questions about FMLA?  We can help.

WWYLD – 3/6/18 – Accommodations for Nursing Mothers

Question:  Can you clarify the law regarding break time for nursing mothers?  What is meant by “reasonable break time?”  Does this mean employees can take the break anytime they want, even if the department is particularly busy?

The Federal Affordable Care Act (“ACA”) created employer obligations with regard to break time for nursing mothers.  Under the ACA, an employer is required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

This section of the ACA is implemented through the Fair Labor Standards Act (“FLSA”), and applies only to “non-exempt” employees, unless state law requires otherwise.  Therefore, if you operate in a state that does not have a specific law addressing lactation or pregnancy-related accommodations, you are only legally obligated to provide break time for nursing to your non-exempt employees.  The Department of Labor “encourages employers to provide breaks to all nursing mothers regardless of their status under the FLSA.”  And, we recommend, as a best practice, that employers provide break time to all nursing mothers, regardless of whether the employee is exempt or non-exempt.

Depending on the states in which it operates, an employer may have state-specific obligations.  For example, as of April 1, 2018, Massachusetts employers must comply with the Pregnant Workers Fairness Act, which requires that employers provide reasonable accommodations for an employee’s “pregnancy or any condition related to the employee’s pregnancy,” including the need to express breast milk.  The Act indicates that accommodations may include:  a) more frequent or longer paid or unpaid breaks; and b) a private non-bathroom space for expressing breast milk.  (The Act provides a longer list of example accommodations; I’ve simply highlighted two here.)

State-specific employee protections are certainly not limited to Massachusetts.  Arkansas, California, Colorado, Connecticut, D.C., Hawaii, Illinois, Maine, Mississippi, Montana, New Mexico, New York, Rhode Island, Vermont, Virginia, and Oregon all have laws that protect workplace lactation.  (This interactive MAP provides a nice summary.)

So, how many breaks are reasonable?  For how long?  The ACA does not define “reasonable” break time and the guidance is limited.  The DOL indicates that break time should be provided “as frequently as needed by the nursing mother” and that “the frequency of breaks needed to express breast milk as well as the duration of each break will likely vary.”

While we can’t rely on this as official guidance, the US Department of Health and Human Services provides an “Employees’ Guide to Breastfeeding and Working” that indicates the following in the “When to Express Milk” section:  “Express milk for 10-15 minutes approximately 2-3 times during a typical 8-hour work period. Remember that in the first months of life babies need to breastfeed 8-12 times in 24 hours. So you need to express and store milk during those usual feeding times when you are away from your baby. This will maintain a sufficient amount of milk for your childcare provider to feed your baby while you are at work. The number of times you need to express milk at work should be equal to the number of feedings your baby will need while you are away. As the baby gets older, the number of feeding times may decrease. When babies are around 6 months old and begin solid foods, they often need to feed less often. Many women take their regular breaks and lunch period to pump.  Others talk to their supervisor about coming in early and/or staying late to make up the time needed to express milk. It usually takes 15 minutes to express milk, plus time to get to and from the lactation room.” (https://www.womenshealth.gov/files/assets/docs/breastfeeding/business-case/employee’s-guide-to-breastfeeding-and-working.pdf)

Because the frequency and duration are dictated by the needs of the employee/nursing mother, you, as the employer, are somewhat limited in what you can do.  However, there are some things to consider:

  • Minimize unnecessary breaks by requiring the use of PTO or by making them unpaid (to the extent permitted).  The law does not require that the breaks be paid, unless the employer provides paid breaks.  Even then, the employer is not required to pay for all breaks, only the number stated in the employer’s policy.  If you provide two paid breaks to your employees, nursing mothers would be allowed to take two of her nursing breaks as paid, but any beyond that could be unpaid/use PTO.  Remember, you can’t dock an exempt employee’s pay based on the quantity of work performed.  But, you can deduct from a PTO bank.
  • Talk to the employee(s).  Nothing in the law prohibits or limits an employer’s right to talk to the employee about how to most effectively schedule the breaks.  You are well within your rights to meet with this employee (or any/all employees who request additional break time) and discuss different ideas for accommodating the employee’s needs while also causing the least amount of disruption to the company.

WWYLD – 2/27/18 – Sexual Harassment Training

We’re excited to tell you about a new development here on the Foley & Foley blog.  Each week, we’ll be posting a “What Would Your Lawyer Do” article that will present our thoughts on an interesting employment law question.  It may be an answer to a question that arises in your world all the time.  Or, maybe it’s a question you’ve never faced before.   Either way, we hope you’ll find the questions and answers interesting, informative, and – if we’re really on a roll – entertaining.

Question: Which states require sexual harassment training?  Where required, what does training have to look like?  And, how do I know which employees must take the training? 

Three states, California, Connecticut, and Maine, require that private employers conduct sexual harassment training.  Multiple additional states require that public employers provide training.  And, many states do not specifically require training, but strongly recommend it and cite the delivery of training as a way to lower risk and demonstrate adherence to anti-discrimination and anti-harassment laws.

  • California
    • Who must conduct training?  Any employer that operates in the state of California and has at least 50 employees.  The number of employees is based on total employees, not just those in California.  Therefore, if an employer has just one employee in California, but at total of 50 or more, the employer is subject to the California law.
    • Who must participate in training?  Supervisors who themselves are employed in California.  It’s the supervisor’s location that matters.  If a Massachusetts-based supervisor supervises California-based employees, that supervisor is not required to participate in training.  The law broadly defines “supervisor” as someone “with authority to hire, fire, assign, transfer, discipline, or reward other employee” or “anyone with the authority to effectively recommend (but not take) these actions, if exercising that authority requires the use of independent judgment.”
    • What are the specifications of the training?  Training must occur within 6 months of the individual becoming a supervisor and every two years thereafter.  Training must be at least two hours in duration and take place in an interactive setting where questions can be answered by a trainer.  Training must cover specific topics and include methods for assessing comprehension.
  • Connecticut
    • Who must conduct training?  Any employer that operates in the state of Connecticut and has at least 50 employees.  Like California, Connecticut bases the number of employees on total employees, not just those in Connecticut.
    • Who must participate in training?  Unlike California, Connecticut looks at the location of the person being supervised.  To comply with Connecticut law, employers must provide training to any supervisor who supervises a Connecticut employee.  Connecticut defines a supervisor as: “any individual who has the authority, by using her or his independent judgement, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances or effectively to recommend such actions.”
    • What are the specifications of the training?  Training must occur within 6 months of the individual becoming a supervisor.  Subsequent training is not required, but the state recommends that employers provide training every three years to cover any changes in the law.  Training must be at least two hours in duration and take place in a “classroom like setting” that allows participants to ask questions and receive answers.
  • Maine
    • Who must conduct training?  Any employer that operates in the state of Maine and has at least 15 employees in Maine.  Unlike California and Connecticut, Maine looks only at the number of employees in the state.  If an employer has 15 employees in Maine, but they are quite decentralized, the employer may be exempt from providing the required training.
    • Who must participate in training?  Maine’s requirement is not limited to supervisors – all Maine-based employees must take training within one year of hire.
    • What are the specifications of the training?  Maine doesn’t have a specific required duration or format for the training, but does provide a checklist of content that must be covered.

Have questions on required training?  Need assistance developing training sessions?  Looking to update your sexual harassment policy?  We can help.