Department of Labor Proposes a Change to the FMLA Definition of a “Spouse”

On June 20th the Department of Labor proposed a change to the current Family Medical Leave Act definitions. The proposed changes would strengthen the rights of same sex married couple to take FMLA leave to care for a spouse with a serious health condition.

Currently the definition of spouse reads “a husband or wife defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in States where it is recognized.” (emphasis added). This means that the law only recognizes same sex married couples that are married under the law of the state in which they reside.

This definition means a same sex couple that is married in a state recognizing same sex marriages, but live in a state that does not recognize same sex marriage would not be considered a “spouse” under the current definition. There are many same sex couples who have travelled out of their state of residence to get legally married. These couples have fewer rights under federal law because their states of residence do not recognize their marriage.

The DOL has proposed changing the definition to read:

“For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into, or in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

This new definition means a couple that marries in a state recognizing same sex marriage but lives in a state that does not recognize same sex marriage would now fall under the definition of “spouse”. Under the new rule a same sex married couple would be able to take FMLA leave in order to care for their spouse if the spouse has a serious health condition. It would not matter if the couple lived in a state that does not recognize the validity of their marriage. This helps to equalize rights under federal law for same sex couples regardless of their state of residence.

It is still possible that this proposed rule change will be blocked or the rule altered before implementation. However, with the recent court decisions striking down same sex marriage bans from Kentucky to Utah it seems likely that this definition will be become the new law.

The proposed DOL definition change will be very good for the many married couples in states that don’t recognize same sex marriage, like Georgia for example. If you are a in a same sex marriage but live in Georgia, and you have run into trouble taking time to care for your spouse, contact Atlanta FMLA attorney Ben Kandy.



An Attack on New DOL Home Health Care Workers Overtime Rule

The changes to overtime rules announced by President Obama and the Department of Labor have already come under attack by a combination of state governments and home health care agency owners.

The rules, scheduled to come into effect January 2015, would require home health care workers be paid overtime if they work more than 40 hours in a week. Currently a health care worker who works in a private home may not need to be paid overtime under federal law.

Some state governments want the rule to be delayed because they are worried about medicaid costs. Currently medicaid pays for home health care for poor people. The state’s medicaid budgets are balanced by underpaying certain workers and the states are concerned that they may not be able to change their budgets in response to the new requirements. The fact that a number of states already require that home health care workers be paid overtime suggests that the proposed federal changes would not make home health care financially unfeasible for medicaid patients.

Private industry associations have also challenged the new rule by suing the Department of Labor in Federal Court. The industry groups are claiming that the Department does not have the authority to institute the new rules and did not follow the proper procedures. Following previous court decisions should lead to the challenge failing. In 2007 the Supreme Court ruled the DOL’s interpretation of the rule that denied overtime for home health care workers was appropriate because Congress authorized the Labor Department to write the regulation on who was to be covered under the law and the department properly did just that. It would be incredible (though with this supreme court possible) that a court could rule that the Department has the authority to institute rules to deny overtime protections for home health care workers but not interpret the rule to allow overtime protections where the statute is silent on the issue.

While there are many situations where an individual doing health care work in a private home is exempt from being paid overtime, it’s not always the case. If you are providing health care and other duties and don’t get paid overtime it is worth speaking with an attorney. In Georgia contact Atlanta overtime lawyer Ben Kandy.



Mets Player Dan Murphy puts Paternity Leave in the Spotlight

Recently the White House hosted a forum on working fathers. The event was notable for some of the guests that were present. Daniel Murphy, second baseman for the New York Mets, was invited to give testimony because of his experience with taking paternity leave after the birth of his son.

Murphy missed opening day in order to attend the birth of his son. Under the agreement between the MLB and the players’ union Murphy had three days of paid paternity leave. He opted to take two of those days and received criticism from fans and the media.

In the face of criticism Murphy offered a rousing defense of paternity leave for fathers. Murphy said “When [my son] Noah asks me one day, ‘What happened? What was it like when I was born?’ I could have answered, ‘Well, Stephen Strasburg hung me a breaking ball that day, son. I slammed it into the right field corner,” Murphy told the audience. But instead, he continued, he can tell his son, “I am the one who cut his umbilical cord.”

Currently employees who work for employers with 50 or more employees and have worked 1275 hours in the past 12 months are eligible for 12 weeks of unpaid leave under the Family Medical Leave Act. However, it is estimated that 40% of US workers are not eligible for FMLA leave. FMLA leave is also unpaid and many workers can not afford to forgo income in order to take time off.

There have been a number of attempts in congress to introduce bills establishing paid leave. H.R.1286 – Healthy Families Act and H.R.3712 – Family and Medical Insurance Leave Act of 2013 seek to establish paid time off to care for one’s own illness or the illness of a loved one. There is not much chance the Republicans in the House or Senate will allow bills like these to advance.

Paid sick leave laws have had more success at the state and local level. Rhode Island, California, and New Jersey have all passed paid time off laws. A number of other states are either actively considering bills that would establish paid sick leave or are studying the issue. Cities, Municipalities, and counties are also working to introduce paid time off laws.

Dan Murphy put the importance of fathers and the need for men to take paternity leave in the spotlight. Thankfully it appears as if most people support Murphy and fathers taking time off for the birth of a child. Establishing paid leave will help more men take paternity leave and be there for their wives and newborn children.


If you have had an issue with taking leave for a serious health condition call Atlanta Employment lawyer Ben Kandy.


NYT Editorial: Tipped Workers Deserve a Raise

The New York Times editorial board published an important piece explaining why workers who are paid mostly by tips are deserving of a long overdue raise. Currently the federal Fair Labor Standards Act allows employers of tipped workers to pay their tipped workers less than the federal minimum wage of $7.25 per hour in wages. Employers are allowed to pay their tipped employees $2.13 an hour with the tips making up the difference between what the employers pay in a wage and what the tipped worker takes home.

As the piece point out, this is an important issue that affects a large number of people. Approximately 3.3 million people earn most of their pay from tips. Because of gender patterns in the types of jobs people work it is estimated that three quarters of the 3.3 million tipped employees are women. Employees who are paid mostly with tips are also twice as likely to be below the poverty line than workers who aren’t paid primarily in tips. With the President’s focus on combating income inequality becoming a central part of his agenda, raising the minimum wage for tipped workers could really help to increase the income of some of the country’s lowest paid workers.

This year Senate Democrats introduced a bill that would raise the federal minimum wage to $10.10 an hour gradually over a number of years. The bill would have also helped tipped workers who do not received the full minimum wage from their employer. The minimum wage for tipped employees would have been raised to 70% of the new $10.10 minimum wage. This would mean that employers would have to pay their tipped employees $7.07 an hour in wages with tips making up the difference between the $7.07 tipped minimum wage and the new $10.10 federal minimum wage.

Unfortunately, Senate Republicans killed the bill which would have probably been killed by House Republicans even if it passed the Senate. State and local governments have taken the lead with the city of Seattle instituting a minimum wage of $15 an hour. Even states controlled by the Republicans have moved to increase the minimum wage. Michigan’s governor Rick Snyder joined the Republican controlled state legislature to sign into law an increase in Michigan’s minimum wage.

The Times editorial ends by noting that the real change should be the end of a lower minimum wage for tipped employees. At least seven states have abolished the the lower tipped employee minimum wage and restaurants haven’t disappeared from those states.

The vast majority of Americans support an increase in the minimum wage. Hopefully Republicans at the federal won’t be able to resist public opinion in this case and there will be an increase in the federal minimum wage soon. The increase in the federal minimum wage is necessary because there are states like Georgia that either don’t have a state minimum wage or the state minimum wage is less than the federal minimum wage.

If you are an employee on Georgia who is paid mostly in tips and you think you are being paid less than you are owed contact Atlanta employment lawyer Ben Kandy.


Am I entitled to more leave after my 12 weeks of FMLA leave expires? The interaction between FMLA and the ADAA

Eligible employees are entitled to 12 weeks of unpaid medical to leave to care for their own serious health condition or the serious health condition of an eligible family member. Sometimes an employee might need, say 13 weeks in order to return to work. Can an employer fire an employee who might need a little bit longer than the FMLA 12 week leave allowance to return to work?

While the particular facts are important in making a decision, an employer may be required to give an employee more leave than the 12 weeks required by the FMLA.

The reason an employer might have to give an employee more than 12 weeks of leave is it may be required by the Americans with Disabilities Act as Amended (ADAA).

Under the ADAA employers are required to give disabled employees “reasonable accommodations” to help the employee do their job. Additional leave may be considered a reasonable accommodation in some situations. The ADAA requires the accommodation be weighed against the business needs of the employer. Unless the additional leave will create an “undue hardship” to the business it might be a required reasonable accommodation.

The amount of additional leave that is required will probably be the main factor in deciding whether the accommodation is “reasonable”. Something like an extra few days or a week should not be unreasonable. If the requested leave is a lot longer than the FMLA 12 weeks then an employer may be able to legally deny an employee the extra leave.

If you are on FMLA and it seems like you might need more than the 12 weeks unpaid leave then it might be worth speaking with an attorney. In Georgia contact Atlanta employment lawyer Ben Kandy.


Unpaid Internships Rarely Lead to Jobs for Students

As I have discussed before, unpaid internships outside of an educational context are very often illegal in that the internship violates state and federal minimum wage and possibly overtime laws. States and the federal government have been cracking down on unpaid internships. Courts have helped by ruling for the plaintiffs in a number of minimum wage and overtime suits brought on behalf or people who worked an unpaid internship. Paid internships seem to have become more common than before.

Unpaid internships for students are still widely prevalent. When a student takes an unpaid internship for college credit it is more likely that the internship will meet the requirements for a legal unpaid internship. This means unpaid internships are still very common for students.

Unpaid internships are sold to students by telling them they are being paid in “experience”, and students graduating with an internship under their belt have a leg up on students who did not do an internship while they were at college.

How much does doing an internship help a student get a job after they graduate? A study by the National Association of Colleges and Employers (NACE) seems to suggest not much at all. According to the NACE study 37% of students completing at least one unpaid internship had a job offer by graduation. For students who had no unpaid internships during college 35% had a job offer by graduation. There does not appear to be much benefit for students doing the unpaid internship if the point of the internship is to help the student find a job. Organizations that offer unpaid internships do not seem to offer many of their interns a job after graduation. Companies who hire recent college graduates do not seem to consider an unpaid internship an indication the intern received valuable training.

Interestingly 63% students who completed a paid internship during college received at least one job offer before graduation.

The data seems to suggest that employers consider unpaid internships to be worth what the internship provider paid the intern, nothing. In contrast, interns who receive a paid internship appear to be considered to have learned something of value in their internship that will help them at their new jobs. Employers seem to think interns who were paid must be valuable and internship providers who pay their interns invest more in their interns’ success.

Thankfully unpaid internships are becoming a thing of the past. Employers have lost enough court decisions and the state and federal departments of labor are cracking down enough that employers are getting the message. Now we need to help students understand they are not being helped by an unpaid internship. They are only helping to perpetuate an unfair system that rewards wealth and connections. Work experience is helpful and there is nothing wrong with offering an entry level wage for an entry level job. However, replacing entry level paid positions with unpaid internships only helps unscrupulous employers. This study shows that unpaid internships do not help students to find a job even with all the valuable experience they earned during their internship.

NACE study synopsis.
Article from The Atlantic magazine about unpaid internships.
Article from the Auburn Plainsman student newspaper.

If you have worked an unpaid internship, especially after graduation, contact Atlanta employment lawyer Ben Kandy.


Employees Misclassified as Independent Contractors: Now Employers are Taking a Stand

As I have discussed before, misclassifying employees as “independent contractors” is a very common practice in today’s economy. In some industries it is rife and employers who follow the rules are seeing that it has affected their business. The construction industry has a huge problem with misclassified employees.  Construction jobs use a lot of primary and secondary contractors on a job and these secondary contractors are the ones who misclassify their employees as independent contractors to avoid paying unemployment insurance, paying workers compensation premiums, and follow immigration laws.

Employers who try to do the right thing and play by the rules feel that they are penalized for running a business that complies with the law. Because in many states and at the federal level it is not illegal in and of itself to misclassify an employee, there has been a push to introduce laws making it illegal to misclassify employees as independent contractors.

Some employers in the Texas construction industry have been pushing for a law that would make misclassification illegal. A relatively weak bill was signed by Governor Rick Perry making misclassification on government projects illegal and subject to a $200 fine per misclassified employee.

A broader crackdown on misclassified employees failed in the Texas Legislature in 2013 due to pressure from large home builder companies. New hearings are scheduled to be held on the issue and smaller construction companies are putting their muscle behind the push for a stronger law on misclassification.

A CEO of a small roofing company wrote an open letter to Taxas lawmakers on worker misclassification. The letter is interesting as it shows how the problems caused by worker misclassification impacts employers rather than the more typical perspective of the employee.

The CEO, Mike Beeter, sums it up like this.

“Unfortunately and as a result of our own convictions, we are losing work every day where the buyers could care less about “who” is doing the work or if they are in compliance by having legitimate workers compensation insurance. It is way too easy for roofing contractors and other non-licensed trade contractors to be in business in Texas. It is difficult to be in business with strong convictions.”

In the US money talks. That is why it is good to see employer’s treating this issue as vital for the health of their companies. Legislatures at the state and federal level are more likely to listen to employers who can contribute to campaigns than individual workers who by themselves are powerless. Having business, especially small businesses, on the side of workers (at least for now) can help amplify the call for greater worker protections.

Allowing employers to misclassify employees without punishment hurts workers, the government (and by extensions us, the taxpayers), and employers who play by the rules. It is vital that states and the federal government beef up laws that protect workers and punish employers who break the rules. If a state like Texas can move toward making the practice of misclassifying employees as independent contractors illegal then it gives hope that places that are a little more worker friendly will also introduce laws to end this harmful practice.



Georgia Expungement Laws for Criminal Records

In 2013 the Georgia legislature passed a bill that changed the requirements and procedures for getting a criminal incident removed from a person’s official criminal record. There has been a change to the types of convictions that are eligible for expungement and a simplified method for getting the incident expunged from the record.


Most felonies and most misdemeanors are still not eligible for expungement. With felonies it does not matter how long ago the conviction happened or whether the individual pled guilty, was convicted at trial, or used an “Alford plea”. Some misdemeanors committed by “youthful offenders” are eligible for expungement. Expungment (or removal as it is called) is most useful for non-convictions on a criminal record. Incidents like an arrest with no charge, acquittals, most dismissals, no bills etc.

The biggest change in eligibility is that most non-convictions are now eligible for expungement. This means that if you are not convicted of a crime it is possible to get the incident removed from the record. This is a welcome change. It used to be that even if one was acquitted at trial, the fact they were charged in the first place was still on their criminal record. Now the record of the charge can be expunged.

Procedural changes to the expungement process are also important. For crimes committed after July 1, 2013 the expungement process is (supposed to be) automatic. So for instance, if someone is arrested but let go without a charge then then the arrest should automatically be expunged once the correct disposition is entered into the record.

Some dispositions still require some sort of application process to be removed from the record. This includes dead docket, a conviction that is reversed or remanded, convictions eligible under the “youthful offender” statute, and felonies that were dismissed in relation to a related misdemeanor conviction.

If the arrest happened before July 1, 2013 then the individual must follow the old procedure. The law changes the time the arresting agency has to make a determination as to whether the incident is eligible for expungement. Now the agency must make a decision within 150 days.

Sealing a Record

The new law allows an individual who has a criminal incident expunged from their record can now petition the court to seal the record after it has been expunged. Sealing the record is helpful in helping to make sure the incident does not show up on a background check from a private company. Private companies get their information from multiple sources other than the official Georgia Crime Information Center (GCIC) report. The private companies often get information from court clerks or jails. By petitioning the courts and jails to seal a record it means the sealed criminal incident won’t show up on a private background check.

Do I Have to Disclose Expunged or Sealed Incidents?

What is potentially most important to people with criminal records that are expunged is whether they have to still disclose the incident if asked on a job application or something similar. The law does not allow a person to deny something like an arrest even if it was expunged. There is also no law that prevents an employer from asking about sealed or expunged criminal incidents.

Pardons in Georgia

If your conviction is not eligible for expungement then a pardon might be the best option. To receive a pardon one must:

  • Complete all sentences 5 years before applying;

  • Live a law-abiding life in that 5 years;

  • Have no pending charges;

  • And all fines and penalties must be paid.

If one is eligible for a pardon in Georgia they must then fill out an application with a copy of their GCIC report and optional letters of reference. There is no filing fee for the application and no appeals process. The value of a pardon is questionable. It doesn’t make the incident disappear from the record. However once a crime is pardoned it will be indicated on the record. A pardon will also restore certain rights like the ability to run for and hold office, serve on a jury, or serve as a notary. A pardon can also restore a person’s rights to own certain firearms.

The process for Georgia expungements has been changed for the better. It is easier to get certain criminal incidents taken off your record. However if you have some sort of conviction it is still difficult to get that removed from your criminal record. In Georgia talk to attorney Benjamin Kandy to get an idea of your options in regards to removing incident from your criminal record.


My Criminal Background Check Prevents Me From Getting a Job. What Can I Do?

It is rare today to find a company that does not perform criminal background checks on potential employees before offering a position. In many states an employer can be found liable for hiring someone who injures a co-worker or customer when the employer knew or should have know that the employee had a history of harming others. This has made employers cautious and encouraged them to thoroughly vet potential new hires.

Unfortunately too many people have had brushes with the criminal justice system. For example, in Georgia 3.8 million people (⅓ of the state’s population) have a criminal record of some kind. If you have ever been arrested for a crime where the police took fingerprints then you are in “the system”. Even if you were never charged with anything the arrest may still come up when employers do a check.

So what can you do to if you have something that will come up in a criminal background check? Even if it was an arrest for something that you didn’t do and for which you weren’t charged it can still impact your ability to get a job or rent an apartment.

Where Information In A Criminal Background Check Comes From

In examining the available options it is helpful to first look at the two main sources of information for criminal background checks. The first source is the official repository for criminal background information. Most states have their own agency responsible for official criminal history information. In Georgia for example there is the Georgia Crime Information Center (GCIC). These state agencies coordinate the information from all the cities and counties so it is available from a central location. The federal version is the National Crime Information Center. The official repositories are mostly for law enforcement use but many times it is possible for anybody to access the information for a small fee. These state and federal agencies are usually regulated by a number of laws that provide for procedures that allow people to check their official criminal history and make corrections if there are any errors.

The second main source for criminal history information are private background check companies. There are thousands of companies that provide criminal history information and they are for the most part lightly regulated. These companies get their information from many different sources including county clerk offices and jails. Some states have laws that regulate these private background check companies. The main law federal law policing the private background check companies is the Fair Credit Reporting Act (FRCPA). It is common for the private background check company reports to contain inaccuracies. It is also possible that private background checks might report crimes that have been expunged from the official records.

How Do I Remove Crimes From My Record?

Each state has different laws which govern what procedures can be used to remove old convictions, non-convictions (arrests, dismissals etc.), and other criminal incidents from the record. What can be removed from the record depends on state law. For example, in Georgia felonies can never be expunged and only some misdemeanors can be expunged from the record. The crimes that can be expunged or removed may depend on how old one was when the crime was committed and if it was a first offence.

The main methods of removing or covering past criminal incidents are expungement, sealing, and pardons. Expungement is where a criminal incident is removed from the record. A pardon typically changes the disposition (the outcome reported in the record) from “convicted”, “guilty” etc. to “pardoned”. Usually a pardon does not remove the incident from your criminal record. Sealing a record is another way to prevent a criminal incident from appearing on a background check. When a record is sealed it is not necessarily removed from the record. The incident will usually just not appear on a background check.

What Can I Say To Employers About An Incident Removed From My Record?

In the employment context it is not only important to remove or prevent a criminal incident from appearing on a background check. It is also important that a job seeker can legally say on an employment application that they have not been arrested, convicted etc. of the incident that has been removed from the background check.

In some states the laws prevents an employer from using expunged or sealed criminal incidents in making an employment decision. For example New York allows for a criminal incident to be sealed. Once the record is sealed is illegal for most employers to ask about or use sealed or confidential information in making an employment decision. This might also mean that if an employment application asks if the applicant has ever been arrested or convicted of a crime the applicant does not need to mention a sealed arrest or conviction. Some states don’t have laws preventing an employer from using a sealed or expunged criminal incidents. In Georgia the law does not allow an individual to deny an expunged criminal incident.

This all means that a person who is concerned about what their criminal background check might show, or a person who has had problems getting jobs in the past because of their criminal background need to talk to an attorney licensed to practice in their state. The laws in each of the states can vary widely. If you are in Georgia contact Attorney Benjamin Kandy to discuss your options.


A Welcome Announcement from the White House in Regards to Overtime Pay

Today the White House and the Department of Labor had some great news for American workers. The New York Times and the Washington Post report that President Obama will direct the Department of Labor to revamp certain regulations governing when a person is eligible for overtime. The reports indicate that the main change will be raising the income threshold for when salaried workers can be exempt from overtime.

As I wrote about earlier, currently a salaried worker must be paid at least $455 before they are exempt from being paid overtime for all hours worked over 40 in a week. This number was last raised in 2004 by President George W. Bush. The Times reminds us that as part of the 2004 changes “business groups persuaded President George W. Bush’s administration to allow them greater latitude on exempting salaried white-collar workers from overtime pay, even as organized labor objected.”

Some states have a higher threshold than required by federal law. In California the threshold is $640 a week. In New York, the threshold is $600 a week. Under recently passed laws, the California threshold is set to rise to $800 per week in 2016, and the New York threshold to $675.

This is a needed change. Currently an employee can make around $23,000 and not be eligible for overtime. Companies commonly put low level supervisors and “managers” on a salary to prevent having to pay overtime. The Times estimates that there are around 5 million workers making between $455 and $1000 a week. Raising the threshold could help millions of workers, their families, and their communities.

The White House is also planning to change the way an employee can be classified as exempt from overtime pay under the “executive” exemption. Currently an employee who supervises 2 or more co-workers and has the ability to hire and fire can considered exempt from the overtime requirements. Many managers spend the vast majority of their time doing the same work as the employees they supervise, especially in retail and fast food establishments. There are a lot of managers who don’t do much managing but are expected to work 50 or 60 hour weeks with no overtime for an effective hourly rate that is only a little more than the current minimum wage. President Obama’s regulatory changes will make it a requirement that the an employee must spend a majority of their work time supervising other employees before they are eligible for the executive exemption.

Raising workers’ pay is very important in light of changes to the economy that have been happening since Reagan was president in the 1980s. Since the mid-1980s, corporate profits have soared, reaching a post-World War II record as a share of economic output. The profits of the companies in the Standard & Poor’s 500 have doubled since the recession ended in June 2009, but wages have stagnated for a vast majority of workers in the same period. In 2012, the share of the gross domestic income that went to workers fell to 42.6 percent, the lowest on record.

Because of the Republicans in congress it is almost impossible to pass legislation to help improve workers’ pay. It is good to see President Obama using his executive authority to make a difference for millions of hard working Americans.