The Department of Labor is proposing to make changes to the Family and Medical Leave Act.

The act covers employers with 50 or more employees and entitles eligible employees to take unpaid leave of up to 12 weeks for the care of a newborn child or an immediate family member with a serious health condition or to take medical leave when the employee is unable to work because of a serious health condition.

The proposed changes clarify a wide variety of issues related to who is covered, what kind of notification employers and employees must give, medical certification forms, and the impact of the military leave provisions of the National Defense Authorization Act.

The Department of Labor proposes various changes and clarification, including:

• Allowing employers under certain circumstances to call the employee's physician to clarify information about medical certification forms.

• Counting an employee's prior employment when determining eligibility; employers will not need to count employment prior to a continuous break in service of five years or more.

• Highlighting the consequences if an employee does not provide proper notice or does not follow the employer's customary call-in procedures for reporting absences, unless an emergency exists.

• Clarifying that employees can voluntarily settle their claims without court or Department of Labor approval.

After taking comment from the public, the Labor Department expects to issue final rules this summer.

-- Elaina Smiley,
Meyer Unkovic & Scott,
es@muslaw.com

The fine line between an intern and an unpaid employee could get a company in trouble.

Many companies have unpaid intern programs in which young people, typically college or high school students, get introduced to an employer's workplace. Employers like unpaid interns because they can help to identify talented individuals and contain labor costs, while young people welcome the opportunity to learn about a profession and enhance their resume for future employment.

But unless an unpaid internship program adheres to six requirements set forth by the Department of Labor, the employer can be sued by the unpaid intern and/or fined under the federal Fair Labor Standards Act:

1. The intern must receive training equivalent to a vocational school, meaning that the intern could pay to get the training elsewhere.

2. The intern cannot take the place of a regular employee.

3. The internship cannot come with an absolute guarantee of a future job.

4. The employer cannot get immediate benefit from the intern's work.

5. The intern must benefit from the experience.

6. The employer must inform the intern from the very beginning that the internship is unpaid.

Many employers may find that a less risky alternative to an unpaid internship program is to pay interns the minimum wage and fully integrate them into the workplace.

-- Jane Lewis Volk,
Meyer, Unkovic & Scott,
jlv@muslaw.com