MJMS Forms Exciting New Partnership! 

Business owners today are recognizing that to be successful in this new reality, it is not “business as usual.” Recognizing that alliances and partnerships offer a wider range of services and support to clients, many businesses are partnering with colleagues in complementary industries. 

MJ Management Solutions is proud to announce an exciting new synergy and partnership with NUMBERSetc!  Synergy is defined as, “… the working together of two or more people, organizations, or things, especially when the result is greater than the sum of their individual effects or capabilities.”

MJ Management Solutions, Inc. and NUMBERSetc have teamed up to provide clients with the "HR HELP DESK™." This new service provides the small business all the capabilities and benefits of an in-house HR Department at a fraction of the cost. Clients of NUMBERSetc can now have on-demand access to a professional & experienced HR department. Subscriptions are offered on a month-to-month basis as needed.

Established in 2000, NUMBERSetc provides full service accounting and tax services to small and medium sized businesses in Arizona and Southern California. Also established in 2000, etc. provides full service accounting, tax and grant writing services for non-profit clients in Arizona. These are two unique and allied companies and we are pleased to be working together with NUMBERSetc to provide a wider range of services to clients. 

We encourage our clients to learn more about the accounting and tax services provided by our new partner. To learn more go to www.numbersetc.biz

 Definition of "Son or Daughter" 
in Relation to the FMLA Clarified

On Tuesday, June 22, 2910, the Wage and Hour Division of the U.S. Department of Labor issued an interpretation letter (No. 2010-3) clarifying the definition of "son or daughter" under the Family and Medical Leave Act (FMLA), as it relates to "a child of a person standing in loco parentis." Administrative interpretation and opinion letters do not require the agency to go through the notice and comment process, as long as the letters merely clarify the interpretation of existing rules and definitions. 

In the preamble of the letter, DOL indicated that the agency has received several requests for interpretation of whether leave may be taken by employees lacking a biological or legal relationship to a child.

The new guidance, a copy of which is available by clicking HERE, provides that a person may be eligible for unpaid FMLA leave for the birth or placement of a child, or to care for a son or daughter with a serious health condition, even if that person has no biological or legal relationship with the child. 

In determining whether an employee is eligible for FMLA leave, the interpretation states that "the employer may require the employee to provide reasonable documentation or statement of a family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship." However, the letter also states, "It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child."

The letter specifically mentions its application to unmarried partners and same-sex partners. The fact that the child has a biological parent at home or has both a mother and a father does not prevent a finding that an employee with a non-biological relationship is eligible for FMLA leave. The letter clearly states that, "Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA."

Note: Nothing in this interpretation is intended to change the existing size limitations (50 or more employees) for the application of the FMLA's requirements, and this clarification is intended to cover both public and private employers.

Source: SHRM HR Voice

We Don't Have To Pay Our Interns - Do We? 

For yegrs, students and recent graduates have accepted internships with employers to gain work and practical experience. Many, if not most, employers have treated and continue to treat these internships as “unpaid.” What’s more, in many industries (including film and advertising) this practice is an institutional rite of passage – part of “dues paying”. 

Recent actions and pronouncements by representatives of the federal and various state departments of labor require employers to review their practices to ensure that good intentions (or professional rites of passage) are not leading to wage and hour liability. 

Technically, under the FLSA, there is no such thing as an “intern.” In general, in order for an employer to avoid any minimum wage obligations an individual must be a “volunteer” or a “trainee”. Since volunteers generally are not recognized in the for-profit sector, the utility of that classification is limited. Thus interns, if they are to be unpaid, most likely must be “trainees” for FLSA purposes.

 In order to determine if an individual is a “trainee” exempt from minimum wage, the following six factors generally must be satisfied. 

The rub is that in many instances the intern is performing productive work that would normally be performed by a paid employee. In such a situation, even if the intern is receiving school credit, minimum wage is due under the FLSA. In fact, per Nancy J. Leppink, the acting director of the USDOL’s Wage and Hour Division: “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.”

It is also vital for those with internship programs to note that M. Patricia Smith, the Solicitor of Labor responsible for coordinating the Wage and Hour Division, initiated investigations against several businesses for their use of interns during her tenure as New York Commissioner of Labor.

As always, state law also must be considered. While many states track the FLSA standard, there are various differentiations particularly relevant to multi-state employers. For example, in New York, if an individual is receiving school credit, the individual generally is exempt from minimum wage payment obligations under state law.

What is the takeaway? Businesses need to analyze exactly what the intern will do during the internship. If the intern’s time will be spent primarily on productive work that would normally be performed by another employee, the business should consider paying the intern minimum wage to avoid any trailing legal issues.

Source: Noel Tripp of Jackson Lewis, LLP

For a Department of Labor Fact Sheet on this topic click here.

For information on the position of the CA Department of Labor Standards Enforcement Section 46.6.6 Intern Programs click here.