Kentucky Employment Lawyer Blog

Earlier this month, the U.S. Department of Labor released Fact Sheet #73 about Break Times for Nursing Mothers under the FLSA. The Patient Protection and Affordable Care Act ("PPACA") went into effect on March 23, 2010 amending part of the Fair Labor Standards Act.

Under this law, employers are required to provide "reasonable break time" to a non-exempt employee to express breast milk for up to a year following the child's birth. "Reasonable break time" is flexible and varies in frequency and duration according to the mother's needs.

Further, employers need to provide a private space other than a bathroom to shield the woman from coworkers and the public. Employers are not required to pay employees for the this break time unless the employer already provides compensated break time.

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Kentucky Discrimination Attorneys are anxious to hear the US Supreme Court decision in the case Thompson v. North American Stainless.The Court agreed on June 29, 2010, to hear the case. While it will not be argued until the fall, the case will take a critical look at whether employers can legally retaliate against a complainant's family members when an employee reports illegal discrimination or harassment in the workplace.

In the Thompson case, both Mr. Thompson and his finance, Miriam Regalado, worked for North American Stainless. Mr. Thompson had worked for the company for over six years, and it was known throughout the company that they were dating. Ms. Regalado complained of workplace gender discrimination to the EEOC. A few weeks later, Mr. Thompson was terminated.

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Kentucky employment lawyers are excited about the latest Administrator's Interpretation from the Department of Labor. On June 22, 2010 Deputy Administrator Nancy Leppink clarified when an employee standing in loco parentis may take FMLA leave for birth, bonding, and to care for the child.

Typically, employees eligible for Family Medical Leave may take up to twelve weeks of leave each year to for the birth or placement of a child, to bond with a newborn or newly placed child, or to care for a child with a serious health condition. 29 U.S.C. §2612(a)(1)(A)-(C). In recent years, with ever expanding family units, more and more people wonder the extent of the definition in loco parentis.

As the opinion points out, Congress intended the definition of "son or daughter" to include children outside of traditional families, including "adoptive, step, or foster parents, their guardians or sometimes simply their grandparents or other relatives or adults." See S.Rep. No. 103-2, at 22.

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Last week, the United Supreme Court did something unusual: they all agreed that text messages on pagers issued to government employees can be searched as long as the government's acts are reasonable and motivated by a legitimate work-related purpose. See Ontario v. Quon, 560 U.S. __ (2010).

Typically, employees in the private sector have a very low expectation of privacy. Public employees, however, are protected by the 4th Amendment which prohibits "unreasonable searches and seizures." This rule has been extended to include not just criminal investigations but also other actions taken by governments including investigations into their own employees. Treasury Employees v. Von Raab, 489 U.S. 656,665 (1989).

In Ontario v. Quon, employees were issued pagers with text messaging capabilities. The government was charged overages when employees used exceeded a particular character allotment on the text messages. For several months Quon, an employee issued a pager, exceeded the character allotment and personally paid the overage. His supervisors, wanting to assure that the overages were not being caused by work related text messages, reviewed a sample of texts that Quon made during work hours. Unfortunately, Quon sent some sexually explicit texts which resulted in discipline.

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