July 2010 Archives

July 22, 2010

Checking Credit Reports? Check Your State Law First

If you review applicant or employee credit reports, you're undoubtedly already familiar with the Fair Credit Reporting Act (FCRA). Among other things, this federal law requires employers to get the consent of the employee or applicant before pulling credit and other consumer reports, to give notice if the information in the report might lead you to take adverse action (such as denying the applicant a job or denying the employee a promotion), and to give notice -- again -- if you do ultimately take the adverse action.

As long as you follow the rules above, the FCRA allows you to use credit reports for employment purposes, including to decide whether to hire, promote, or even fire. That's the federal law, however; some states see things differently. The economic downturn of the last few years -- and the resulting damage to credit reports and scores -- have led many politicians to reconsider whether it's really appropriate for employers to use credit reports in making job decisions. At least three states (Hawaii, Oregon, and Washington) have passed laws prohibiting employers from considering credit reports in most circumstances. According to the National Conference of State Legislatures, about 20 states are currently considering similar legislation. (See their detailed chart here.)  

July 9, 2010

DOL Clarifies Definition of Parents Entitled to FMLA Leave

Who counts as a "parent" entitled to take time off work to care for or bond with a child under the Family and Medical Leave Act (FMLA)? According to a new interpretation by the Department of Labor (DOL), anyone who intends to assume the role of parent to that child by providing day-to-day care or financial support. No biological, adoptive, or formal legal relationship is necessary. For example, an employee might be entitled to time off when an unmarried partner's child is born, even though the employee is not the child's biological parent, doesn't intent to adopt the child, and is not married to the child's parent.

This all adds up to good news for same-sex parents, whose rights to parental leave for a partner's biological or adoptive child are now more clearly established. The DOL's interpretation provides other examples as well, such as a grandparent who is caring for children whose own parents are unable to care for them and an aunt who raises a sibling's children after the sibling dies.

The FMLA has always covered those who stand "in loco parentis" (in the place of a parent) to a child, and the DOL's interpretation states that it is merely clarifying what that term means. However, the DOL's interpretation is a clear expansion of rights in at least one way: While the FMLA regulations (at 29 C.F.R. 122(c)(3)) state that an in loco parentis relationship includes day-to-day responsibilities to care for and financially support a child, the DOL's interpretation states that either day-to-day care or financial support is sufficient, as long as the parent intends to assume parental responsibilities toward the child. Along with the express inclusion of gay parents, this signals an intent to expand the law's coverage.

And speaking of same-sex couples and the FMLA, commentators have long opined that same-sex spouses are probably not entitled to leave to care for each other under the FMLA because of the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman. Even though the FMLA regulations state that marriage is to be defined by state law where the employee resides (and includes common law marriage, where it is recognized), the DOMA has been interpreted to override provisions like these where federal rights are concerned. But yesterday, a federal district court in Massachusetts found that the DOMA was unconstitutional. This decision applies only in Massachusetts and may be appealed. For now, however, gay parents and spouses can put these two legal events in the win column.   


For all the information and forms you need to comply with the FMLA, see The Essential Guide to Family & Medical Leave, by Lisa Guerin and Deborah England (Nolo).