Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, July 16, 2015

DOL Issues Administrator Interpretation on Employee Status

On July 15, 2015, Wage and Hour Administrator David Weil issued Administrator Interpretation No. 2015-1 entitled "The Application of the Fair Labor Standard's Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors",  Download DOL

There are no surprises here. The DOL simply summarized the applicable case law that applies the multiple factor economic reality test as opposed to the common law right to control test to determine employee status:

Ultimately, the goal is not simply to tally which factors are met,  but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.... The Supreme Court "has consistently construed the Act 'liberally to apply to the furthest reaches consistent with congressional direction,' recognizing that broad coverage is essential to accomplish the [Act's] goal. . . ."

The DOL makes no mention of the fact that there are at least two other tests utilized in other employment employment statutes (a hybrid economic reality test and common law right to control test; statutory purpose test) or any of the scholarly literature concerning employee status. 

While the DOL was focusing on the FLSA and on some level it is understandable why they simply focused on the economic reality test, I believe that some mention of these other tests was warranted because employers should not assume that simply because an individual is an employee under the FLSA does not mean that he or she is going to be an employee under Title VII, where for example, a hybrid test is often utilized.

Several years ago, I wrote a law review article which addressed many of these issues. Employees, Employers and Quasi Employees. 

Mitchell H. Rubinstein

July 16, 2015 in Employment Law, Federal Law, FMLA, Labor Law | Permalink | Comments (0)

Sunday, November 24, 2013

Important Case on FMLA Eligibility

Mcardle v. Town of Dracut, ____F.3d____(1st Cir. Oct.9, 2013), Download Mcardle 1st Cir 2013 Teacher FMLA eligibilityis an important FMLA case. The case concerns FMLA eligibility. Specifically, the court held that a teacher did not work the required number of hours to be eligible for coverage. Of note, however, is that the court seemed willing to count prep time and work at home, such as grading papers.

Mitchell H. Rubinstein

November 24, 2013 in FMLA | Permalink | Comments (0)

Sunday, October 20, 2013

Same-sex couples covered by FMLA

The NYMUNIBLOG Editorial Team reports that the U.S. Department of Labor has expanded FMLA leave to cover same-sex couples.
The team reports that “When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (DOMA) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, a Harris Beach Legal Alert noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage. Specifically with regard to the Family and Medical Leave Act (FMLA), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.” 
The full text of the posting is at
The Supreme Court decision in United States v Windsor is posted on the Internet at:

As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

October 20, 2013 in FMLA | Permalink | Comments (0)

Thursday, July 4, 2013

Judge Says Paraplegic Worker Unable to Transport Herself to Work Lacks FMLA Claims

A hospital did not violate federal and local medical leave laws when it fired a paraplegic secretary who exhausted her statutory leave entitlements and was unable to transport herself to and from work because of lifting restrictions caused by a shoulder condition, the U.S. District Court for the District of Columbia held May 23 (Alford v. Providence Hosp., D.D.C., No. 11-02121, 5/23/13).

Given that attendance is a “basic necessity for all jobs,” the court ruled that Alford's inability to get herself to work meant Providence was “legally permitted to discharge” her.

July 4, 2013 in FMLA | Permalink | Comments (0)

Saturday, September 8, 2012

DOL Publishes FMLA Guide

This guide is available for free and is not written in legalease. It can be found here.

MItchell H. Rubinstein

September 8, 2012 in FMLA | Permalink | Comments (0)

Wednesday, September 5, 2012

Visit To Doctor To Pick Up Prescription Refill Not Considered Treatment Under FMLA

The 7th Circuit recently held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.

A vist to the doctor to get a prescription refill was not considered treatment. What about a visit to the doctor to take blood? Or a visit to get an X-Ray? I cannot imagine that this case will be adopted by a majority of courts.

Mitchell H. Rubinstein


September 5, 2012 in FMLA | Permalink | Comments (1)

Saturday, August 18, 2012

US DOL Releases New Family and Medical Leave Guide

The U.S. Department of Labor released a new Employee Guide to the Family and Medical Leave Act on June 27, 2012. The new guide, available online and in print, includes easy-to-follow and informative charts that map out the FMLA leave process and a summary of how coverage and eligibility are determined.
View the Slideshow<>; Listen to the Archived Webinar<>; Download the FMLA Guide<>.

Mitchell H. Rubinstein


August 18, 2012 in FMLA | Permalink | Comments (0)

Monday, May 7, 2012

DOL Issues New FMLA Forms

The DOL has updated several FMLA forms. The forms that have been updated are as follows:

  • WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381: Notice of Eligibility and Rights & Responsibilities
  • WH-382: Designation Notice
  • WH-384: Certification of Qualifying Exigency For Military Family Leave
  • WH-385: Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave

For more information, check out the DOL’s website.

Mitchell H. Rubinstein

May 7, 2012 in FMLA | Permalink | Comments (0)

Sunday, October 9, 2011

Title VII standard for materially adverse employment action applies to FMLA retaliation claim


Millea v. Metro–North R.R. Co.2011 WL 3437513 (2d Cir. Aug. 10, 2011).

October 9, 2011 in FMLA, Law Review Ideas | Permalink | Comments (0)

Saturday, September 17, 2011

FMLA retaliation claim proceeds based on single comment; employee with chronic back problem not regarded as disabled

A nursing assistant’s FMLA retaliation claim survived summary judgment based on a single comment that she was not really terminated for altering a doctor’s note. Quinn v Mercy Fitzgerald Hosp, ___F.Supp. 2d (D. Pa. July 22, 2011).  However, her ADA and Pennsylvania Human Relations Act (PHRA) claims failed under a pre-ADAAA analysis because she could not show that she was regarded as unable to perform a wide variety of jobs due to her chronic back condition.

This case demonstrates once again that a retaliation claim may be a more potent claim than the underlying claim on the merits.

Mitchell H. Rubinstein

September 17, 2011 in FMLA | Permalink | Comments (0)

Thursday, September 15, 2011

Bill would amend FMLA to allow parents time-off to mourn the death of a child

Legislation has been introduced in the U.S. Senate that would amend the Family and Medical Leave Act to give parents grieving the death of their child as many as 12 weeks of un paid leave. The FMLA currently only provides protection to employees need "to care" for certain family members.

The Parental Bereavement Act of 2011 (S. 1358) would add grieving over the death of a child to the list of activities for which an individual may take leave under the FMLA. The leave cannot be taken intermittently or on reduced schedule unless both the employer and employee agree. 

Mitchell H. Rubinstein


September 15, 2011 in FMLA | Permalink | Comments (1)

Thursday, September 1, 2011

Employee who was terminated before expiration of his FMLA leave failed to show violation


An employee whose medical condition rendered him unable to work for substantially longer than the 12-week leave period provided for by the FMLA failed to show any prejudice as a result of his termination. The interesting thing about this case was that his termination occurred prior to the expiration of the leave period Hearst v Progressive Foam Technologies, Inc, ____F.3d____ (8th Cir, June 8, 2011).

Mitchell H. Rubinstein

September 1, 2011 in FMLA | Permalink | Comments (0)

Saturday, August 27, 2011




An employee who failed to communicate with his employer during family leave or submit required paperwork regarding his absence could be considered to have abandoned his job and could be fired. Tautrim v. Echostar Satellite, No. G043717, 2011 WL 2001851 (Cal. Ct. App., 4th Dist., Div. 3 May 24, 2011).
California's 4th District Court of Appeal rejected the plaintiff's claim that he was fired in retaliation for exercising his rights under the California Family Rights Act, Cal. Gov't Code § 12945.1.
The decision was decided under state law law. Query whether the result would be the same under the FMLA. I suspect it would.
Mitchell H. Rubinstein


August 27, 2011 in FMLA | Permalink | Comments (0)

Sunday, March 6, 2011

FMLA Does Not Cover Faith Healing Trip


Tayag v. Lahey Clinic, ____F.3d____(1st Cir. Jan. 22, 2011), is both an interesting and important case. The First Circuit held that a company that fired a woman for taking unapproved time off to accompany her husband on a “faith healing” trip did not violate the federal Family and Medical Leave Act. The circuit areed with a lower court's finding that the trip, a seven-week “healing pilgrimage” was not protected under the statute “because it was effectively a vacation.” Such travel is not “medical care” as defined by the FMLA, 29 U.S.C. § 2601. 

Mitchell H. Rubinstein

March 6, 2011 in FMLA | Permalink | Comments (0)

Monday, June 28, 2010

Definition of Son or Daughter Under FMLA

I bet you never thought there would be an issue with respect to the definition of son or daughter. Well, the issue comes up  when there is no legal or biological parent-child relationship. The FMLA has issued an opinion letter seeking to clarify who a son or daughter is.

The DOL has adopted a multi-factor test. It is the Wage and Hour Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis parental status relationship where the employee intends to assume the responsibilities of a parent with regard to a child. But in all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

The full text of the Division’s interpretation letter FMLA 2010-3 can be found here:

Mitchell H. Rubinstein

June 28, 2010 in FMLA | Permalink | Comments (0)

Monday, June 7, 2010

Public Employment - Front pay award, as proxy for reinstatement, was equitable remedy, under FMLA, to be determined by court rather than jury.


Traxler v. Multnomah County, (C.A.9 (Or.)) March 3, 2010:

In a matter of first impression, the Ninth Circuit joined the Fourth, Fifth, and Tenth Circuits, in holding that front pay awarded under the Family Medical Leave Act (FMLA) was an equitable remedy that must be determined by the district court, both as to the availability of the remedy and the amount of any award. The district court's $267,000 front pay award in lieu of reinstatement, representing almost three years of a county employee's salary and benefits or nearly four years of her salary, rather than $1,551,000 awarded by the jury, was supported by both the court's reasoning and substantial evidence.

Mitchell H. Rubinstein

June 7, 2010 in FMLA | Permalink | Comments (0)

Saturday, May 15, 2010

EDMich: Timing of discharge, stack of work raised fact questions in FMLA case

A marketing communications specialist discharged on the day she returned from FMLA leave may go forward with her interference and reprisal claims under the Act. After dismal holiday sales in 2007, Sysco decided to cut staff, including the specialist’s position. On the day the specialist returned from FMLA leave, she was told that her employment was terminated. The employee alleged she was fired because she took FMLA leave for the birth of her daughter. Sysco argued that due to dismal holiday sales it needed to reduce its workforce, and that the majority of the specialist’s duties had been outsourced, necessitating the elimination of her position. However, the record revealed that the employee returned to a stack of work after returning from leave and a coworker reported that the company was very busy in her absence. Consequently, triable issues existed as to whether the employee’s discharge would have occurred regardless of her taking FMLA leave. In so ruling, the court relied on the timing of the decision to terminate the employee, the lack of documentary support that Sysco would save money by eliminating her position, and the evidence that her workload and duties had not diminished at the time of her FMLA leave (Mastin v Sysco Food Servs of Detroit LLC, March 24, 2010).

Mitchell H. Rubinstein

May 15, 2010 in FMLA | Permalink | Comments (0)

Sunday, May 2, 2010

Under FMLA mix of expert, lay testimony can establish serious health condition


Schaar v Lehigh Valley Health Servs, Inc, ___F.3d____(3rd Cir. March 11, 2010), is an interesting FMLA decision. A combination of expert and lay testimony can establish that an employee was incapacitated for more than three days, a showing required by the FMLA's implementing regulations. A medical receptionist sued her employer, claiming FMLA interference and discrimination, when she was fired six days after taking two days of sick leave followed by two days of previously scheduled vacation time in order to recover from a urinary tract infection and a related illness. A district court held the employee did not establish that she had a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days. The district court granted summary judgment to the employer, finding that the doctor's note she provided to her employer established incapacitation for only two days and her reliance on her own testimony about the remaining days was insufficient to establish a serious health condition. Vacating and remanding, the Third Circuit noted that all of the circuits to address the issue have held that lay testimony can create a factual issue regarding incapacitation. After reviewing the relevant DOL regulations, the appeals court found no support for the categorical exclusion of all lay testimony regarding the length of an employee's incapacitation. In contrast to the Fifth and Ninth Circuits, however, the Third Circuit did not rule that lay testimony alone was sufficient to establish incapacitation. Rather, it agreed with Eighth Circuit precedent, holding that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

Mitchell H. Rubinstein

May 2, 2010 in FMLA | Permalink | Comments (0)

Monday, March 15, 2010

Discharged employee offers evidence of FMLA interference, retaliation

Erdman v Nationwide Ins Co, ___F.Supp.2d____(M.D. Pa.January 15, 2010), is an interesting case. An employee who applied for FMLA leave after being denied vacation time to prepare her Down Syndrome child for school and then was terminated for purported behavioral problems offered enough evidence to support a reasonable jury finding that she was discharged for attempting to invoke her FMLA rights. The company had revoked the employee's modified work schedule, initially implemented so that she could care for her disabled daughter, and notified her that it would eliminate her job unless she accepted a full-time position with a standard schedule. While she agreed to the schedule, she sought confirmation of, but was denied, her previously requested vacation to prepare her daughter for school. When the employee stated that she would use FMLA leave if her vacation request was not approved, she was fired for multiple incidents of inappropriate workplace behavior. Denying claims of FMLA interference and retaliation, the employer argued that it had offered the employee a full-time position, granting her full-time status even though she declared her intent to seek FMLA leave before accepting the company's offer. However, given the facts alleged, a reasonable factfinder could discredit the contention that employee misconduct prompted the discharge, the court concluded. 

Mitchell H. Rubinstein

March 15, 2010 in FMLA | Permalink | Comments (0)

Sunday, March 14, 2010

What Happens After An Employee's FMLA Leave Expires?

A posting from Jeff Nowak of Franczek Radelet in Chicago via Workplace Prof Blog reminds us that even after an employees FMLA leave expires, an employer may have an obligation to accommodate his or her disablity. This important issue is discussed in January FMLA Insights podcast,

Mitchell H. Rubinstein

March 14, 2010 in FMLA | Permalink | Comments (0)