In a rare reversal of a magistrate’s recommended ruling, the District Court Judge agreed with plaintiff’s argument that dismissal of the wrongful discharge claim was inappropriate because the employment agreement might ultimately be unenforceable due to indefiniteness. Specifically, the agreement permitted Roush to unilaterally demote the plaintiff and reduce his pay, which plaintiff argued potentially rendered the agreement too indefinite to be enforceable. In the event the employment agreement was unenforceable, the District Court Judge reasoned that the plaintiff should be able to plead the wrongful discharge claim in the alternative to his breach of contract claim.

The victory is significant from a damages standpoint. While there are damages caps applicable to the Americans with Disabilities Act, there are no such damages caps on compensatory damages under the state law wrongful discharge claim that was restored by the Court’s latest ruling.

Roush has since filed its answer and the parties are poised to begin the discovery process.  Josh Van Kampen is representing the plaintiff in this case.

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)-(C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” . . . “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors.

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

When it comes to paid maternity leave, the United States is in the postpartum dark ages.  One hundred and seventy-seven nations — including Djibouti, Haiti and Afghanistan — have laws on the books requiring that all women, and in some cases men, receive both income and job-protected time off after the birth of a child. But here, the Family and Medical Leave Act of 1993 provides only unpaid leave, and most working mothers don’t get to stay home with their newborns for the 12 weeks allowed by the law. Many aren’t covered by the FMLA; others can’t afford to take unpaid time off. Some go back to work a few weeks after giving birth, and some go back after mere days.

• Short-term and extended leaves from work, including paid time off for family and medical leave and paid sick days.
• Workplace flexibility to allow families to plan their work lives and their family lives.
• High-quality and affordable childcare so that breadwinners can concentrate on work at work, and
• Freedom from discrimination based on family responsibilities.

Check out the full report or the executive summary for more details.

An excellent paper on the topic is “Free Riding on Families: Why the American Workplace Needs to Change and How to Do It,” an Issue Brief by Phoebe Taubman, an Equal Justice Works Fellow with A Better Balance: The Work and Family Legal Center, based in New York City.  The paper discusses the need for reform, compares our laws to the more robust protections available in most other countries, and proposes reforms in the areas of: an improved Family and Medical Leave Act, paid sick days, workplace flexibility, employment discrimination against caregivers, and workplace equity.

Summary: This paper discusses some common problems faced by injured workers and the remedies available to them. First, workers are often blamed for their own injuries, and then disciplined or discharged for violating safety rules. Those covered by a CBA can contest those sanctions through arbitration. Second, workers who have recovered from their accident may be denied from returning to their jobs on account of their injury. In some cases, such a denial is unlawful under the Americans with Disabilities Act (“ADA”). Third, workers injured by unsafe workplaces may be retaliated against if they report the safety hazard to their employer. Retaliation can be challenged under OSHA § 11(c), and often also under state law.  Finally, those assisting injured workers should always bear in mind the benefits available under workers’ compensation law and the Family and Medical Leave Act (“FMLA”).