Domestic Partners and the FMLA

As everyone knows, the FMLA gives employees 12 weeks of unpaid leave for a for the birth, care, or adoption of a child, to take care of a spouse, child, or parent with a serious health condition, or to take of her own serious health condition.  One recurring question that has come up is what is a "child" for purposes of getting leave under the FMLA. 

When the FMLA was enacted, Congress was aware that there are many non-traditional families, and many children who are cared for by someone other than a biological parent.  By some estimates, more than 6.5 million children being raised by grandparents or other relatives.  Congress therefore adopted a broad definition of child under the act to include a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."  I love the term "loco parentis." which means someone who has put himself in the shoes of a parent by by assuming the obligations of parenthood without formally and legally becoming a parent.  I love the term because in Spanish "loco" means "crazy," which descripes sometimes what it is like being a parent. 

In a recent interprative letter from the Department of Labor, the Secretary of Labor clarified that the term in loco parentis is to be read broadly, taking into account the reality that, in essence, it takes a village to raise a child.  DOL Interpretive Letter The letter clarifies that in order to be considered a parent, one has to have either day-to-day responsibilities over the child, or provide financial support, but not both.  So, for example, if a couple divorces and both spouses remarry, both parents and both step-parents would be entitled to leave.

What commentators and the blogosphere have focused on in the letter is its explicit statement that same-sex partners raising a child together are both entitled to FMLA leave to adopt the child or care for him if the child has a serious health condition. 

While to me it is obvious that a same-sex partner would stand in loco parentis with regard to a child both partners are raising, some have attacked the letter as "advancing the homosexual agenda."  The Baptist Press quotes one Tony Perkins as saying the letter is an unconstitutional attack by the Obama administration on .... well, something.

I can't figure out why someone would be opposed to giving leave to someone to take care of a child, regardless of the orientation of the couple raising the child.  Shouldn't we be encouraging more child-centric policies?  FMLA leave is still unpaid, so it's a hardship for many people to take leave.

This interpretative letter is a start as far as extending benefits under the FMLA goes, yet the law does not go far enough.  As written, a domestic partner can take care of the child the partners are rearing together -- but can't take care of the partner.  That's because the FMLA gives the right to take unpaid leave to take care of a child, spouse or parent.  This means that the millions of same-sex couples who are legally prohibited from becoming spouses are also prohibited from taking FMLA leave to take care of their partner if he or she becomes sick.  It's hard to see why a domestic partner should get to take care of his child, but not the partner with whom he is raising that child.

The Supreme Court's Amnesia and New Process Steel

Today the Supreme Court issued the New Process Steel decision, which invalidated something like 600 National Labor Relations Board cases that were decided by a two member NLRB panel.  Link to Supreme Court decision The decision is remarkable not for the hypocritical reading of the governing statute by a group of justices normally devoted to the plain meaning of a statute, but for the complete lack of appreciation for real world issues.

The NLRB is composed of five members, have staggered terms and are appointed by the president subject to Congressional approval.  Politics can delay appointments for months, or even years as in the case of Craig Becker.  Towards the end of 2007 the Board found itself down to four members and one vacancy, with the expectation of another two vacancies.  In anticipation of only having two members, the Board delegated its authority to three members.  The Board believed (relying on legal opinions) that this delegation would permit two members to act as a quorum if and when vacancies reduced its membership to two.
Because the Republicans would not approve the appointment of any new NLRB members, the Board was composed of two members until this year, when Obama finally recess-appointed two members.  Thus, during a two year period a two-member Board issued approximately 600 decisions.  One of those decisions was challenged on the basis that the NLRB lacked the authority to delegate its powers to a two-member quorum.

The Supreme Court agreed that the NLRB lacked such authority in a 5-4 decision written by Stevens and joined by Scalia, Thomas, Roberts, and Alito.  The actual decision turns on statutory interpretation.  Suffice it to say that although the majority thought that the NLRB's reading of the statute was "permissible," it nonetheless held that Congress did not intend to permit the Board to act with two members.  Bizarrely, the Court acknowledged that two members could render decisions on behalf of the entire Board, but not when one of the members was "vacant."  As the dissent pointed out, the plain language of the statute authorized the delegation.  The dissent also had it exactly right when it noted that the Board through "the promotion of industrial peace."

This is the bigger picture that the Roberts/Scalia block on the Supreme Court can't or won't get.  The National Labor Relations Act, which the NLRB interprets, was designed to minimize industrial strife and place workers and employers on more of a level playing field.  The NLRA affects real lives, real people, and it is against that backdrop that the statute should be interpreted and enforced.  The New Process Steel decision is only the latest in a long line of Supreme Court decisions that seem to have forgotten the purpose of the NLRA.  Even the Democratic appointees on the Court now are mostly pro-business, as can be seen in the Court's willingness to favor employers over employees, corporations over people, and business over all.  This is what distinguishes the Roberts Court, and what is reflected in the New Process decision.

Temple Nurses Win Another Victory

Last March nurses at Temple Hospital went on strike for a month to protest, among other things, the elimination of tuition benefits, a "gag rule" that prevented nurses from criticizing the hospital, understaffing issues, and of course wages and benefits.  It's rare that workers these days will strike.  It's rarer still that they win -- After a month on the picket line the strike settled, with the tuition rule modified and the gag order lifted. 

This week the nurses won another victory, when the Pennsylvania Department of Labor and Industry found that the nurses were locked out, rather than strikers.  The decision means that the nurses will receive unemployment benefits for the weeks they were out on strike.

Under Pennsylvania's unemployment law, strikers receive no unemployment benefits, while employees who are "locked out" do.  The distinction comes down to who altered the status quo.  If an employer changes the terms and conditions of employment it has changed the status quo, and therefore workers are entitled to benefits.

In the Temple case, the hospital changed the status quo because it unilaterally altered the tuition benefit before the workers walked out.  By doing so, the Unemployment Board found that it had altered the status quo and essentially caused the strike.

The decision is doubly painful for Temple because it will be on the hook for the payments.  Most employers pay unemployment insurance to pay for unemployment claims.  Some larger employers like Temple, however, are self insured, which means that Temple will have to shell out something like a million and a half dollars.  That's not all Temple had to pay for the strike.  It is estimated that Temple spent something like 40 million on strike replacements during the strike.  Of course, it could have kept the tuition reimbursement in place and shown workers some respect by not insisting on a gag rule in the first place.  Seems like an expensive price to pay for a couple of items that didn't cost the hospital much in the first place.

BP and Massey Energy -- The Perils of Government Deregulation

If there is one thing we can learn from the BP oil spill disaster and the Massey coal mine disaster (not to mention the stock market mess), it's this: the move away from government regulation and the increased dependence on companies to police themselves is itself a disaster.

Since at least the 1980s a steady chorus of anti-government propaganda from the Right has resulted in a weakening of government regulations and laws, whether through decreased funding, relaxing of safety regulations, or increased exemptions from safety rules.  During the Bush years, the foxes guarded the henhouse, as industry insiders were given top government positions regulating the industries from which they came.  All of this contributed to the disasters we now face.

BP, for example, took advantage of exception after exception from safety rules when setting up its deep water rigs.  The feds were mostly absent as BP set up its deep water rig in the Gulf of Mexico, even as BP's own engineers were questioning the Company's methods.  Government safety inspections of deep water wells were mostly nonexistent, consisting mostly of  "helicopter visits to offshore rigs to sift through company reports of self-administered tests."  http://www.nytimes.com/2010/06/06/us/06rig.html?pagewanted=2.  In some cases, oil officials filled out safety reports in pencil, which government inspectors then filled out in pen and turned in.  NY Times Report. 

Not only is the government hamstrung by the cozy relations between the regulated and the regulators and the decrease in funding, but BP and companies like it have the resources to simply outspend and outgun the government.  BP, with the worst safety and environmental record by far of any oil company operating on US shores, has paid something like 700 million in civil penalties and fines the past in the past few years.  While that may seem like a lot, it is merely the cost of doing business:  in 2009 the company reported profits of nearly 14 billion dollars, and nearly 25 billion in 2008.  In relative terms that's like the average Joe paying $100 for a traffic ticket -- does that really deter anyone?

Massey, likewise, took advantage of lax governmental enforcement and looked at fines as another way of doing business.  As I reported in an earlier post, Massey energy, owner of the Upper Big Branch mine where dozens of workers were killed, paid millions in fine and had a horrendous safety record.  http://phillylaborlawyer.blogspot.com/2010/04/more-on-masseys-mine-disaster.html.  It apparently concluded that cheating on safety was worth the risk of paying small fines. 

What does any of this have to do with the labor movement?  Well, labor has been a canary in the coal mine as far as government deregulation and lax enforcement goes.  Big business figured out  years ago that the lack of any meaningful enforcement of the National Labor Relations Act means that companies can simply disregard the law during organizing drives without any real consequences.  After all, if you get caught violating the NLRA, the result most of the time is that the company has to post a notice saying it violated the Act.  So what?  And if an employer unlawfully fires an employee during an organizing drive, all it has to pay is the back pay of the employee -- minus the money the employee could have or should have made.  Without any real consequences, companies will take risks.  And without any meaningful government regulation or enforcement, bad actors like BP and Massey will push the envelope in the name of profit, safety and the environment be damned.