The TBA will host its 29th Annual Labor & Employment Law Forum in Nashville on May 2. The day will begin with a case law update, followed by a discussion of values-based professionalism with representatives from Belmont University and LMU Duncan School of Law. Discover tips for arbitrating employment disputes from this experienced panel. After lunch, we will talk about workplace privacy, and the day will end with a session on the current state of DEI initiatives. Attendees can earn up to one dual and four general CLE hours, and section members receive a discount on registration.

Schedule At-a-Glance:

8-8:30 a.m.: Breakfast & Registration
8:30-9:30 a.m.: Case Law Update — Jeb Gerth
9:30-9:45 a.m.: Break
9:45-10:45 a.m.: Values-Based Professionalism — Kristi Arth, Maha Ayesh
10:45-11 a.m.: Break
11 a.m-noon: Navigating Your Arbitration: Tips and Traps for Employment Lawyers — Mark Travis, Stan Graham, Heather Collins
Noon-12:45 p.m.: Lunch (provided)
12:45-1:45 p.m.: Navigating the Legal Landscape of Workplace Privacy — Greg Grisham, Maureen Holland
1:45-2 p.m.: Break
2-3 p.m.: DEI — Dan Norwood

All times Central Daylight.

In Chapman v. Brentlinger Enterprises,[1] the 6th Circuit clarified the meaning of “in loco parentis parent” as used in the Family Medical Leave Act (FMLA).[2] Here, Celestia Chapman’s sister Sharon was dying from non-Hodgkin lymphoma, and she asked Chapman to be her “primary caregiver” in her final stages.[3] When Sharon reached this point, Chapman honored Sharon’s request.[4] Chapman’s care was not only physical, but also financial.[5] Alecia, the third sibling, also shared in providing care to Sharon.[6]

Chapman used up her paid time off caring for Sharon.[7] Chapman’s employer, Brentlinger Enterprises, d/b/a Midwestern Auto Group (MAG), allowed her to take unpaid leave.[8] At the end of the unpaid leave, Chapman requested FMLA leave.[9] MAG denied the request because it believed the FMLA did not cover leave to take care of siblings.[10] MAG approved a modified schedule that reduced Chapman’s hours.[11] Chapman was late the first day of the modified schedule because Alecia’s plane was late.[12] Chapman texted the HR manager explaining the situation with Alecia’s plane.[13] Although the parties dispute when Chapman gave notice, the HR manager received Chapman’s text at 9:21 a.m. on the day Chapman was late.[14] Sixty-six minutes later, MAG fired Chapman.[15]

When Chapman’s lawyer told MAG that Chapman planned to file an FMLA lawsuit, MAG responded that the suit would be frivolous, and MAG might pursue sanctions.[16] MAG also opposed Chapman’s application for unemployment benefits, telling the agency that Chapman abandoned her job by quitting and not showing up.[17] Chapman sued MAG for, among other things, interfering with her FMLA rights and benefits and retaliating against her.[18] Chapman alleged that MAG retaliated by firing her, threatening Rule 11 sanctions, and dishonestly opposing her application for unemployment benefits.[19] The district court granted MAG summary judgment on the FMLA claims.[20]

The elements of an FMLA retaliation claim are that (1) Chapman was an eligible employee, (2) MAG was a covered employer, (3) Chapman was entitled to FMLA leave, (4) she provided proper notice to MAG of her intent to take FMLA leave, and (5) MAG denied her the FMLA rights or benefits granted by the FMLA.[21] The dispute was over the third element.[22] Although the FMLA allows unpaid leave to care for certain relatives, siblings are not on the list.[23] Chapman argued that caring for her sister falls into leave to care for an “‘in loco parentis’ parent or child.”[24]

The 6th Circuit first addressed “whether the FMLA recognizes the kind of in loco parentis relationship alleged [by Chapman], which formed when the dependent was over 18, her condition developed in adulthood and the purported parental relationship originated after the onset of the disabling condition.”[25] The court began, as it should,[26] with the plain text of the statute.[27] Under this analysis, the 6th Circuit held that the FMLA covers more than adoptive and biological families.[28] The statute defines “‘parent’ [as one] who stood in loco parentis to an employee when the employee was a son or daughter. An employee can also be an in loco parentis parent. Either way, the statute defines ‘son or daughter’ to mean ‘a biological, adopted or foster child, a stepchild, a legal ward, or 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] Under the statute, those involved in “a special relationship where one person acts ‘in loco parentis’ ... to a dependent person or ‘child,’” can take leave to provide care.[30] The FMLA’s plain text shows that Congress intended to protect “parental relationships, whether biological, legal or their functional equivalents.”[31] Unanswered questions, however, remained. Must the in loco parentis relationship or the disability start before the child reaches majority? And must the in loco parentis relationship begin before the child’s incapacity?

Because the statute does not address “in loco parentis relationships under these circumstances,” the court looked to the common-law meaning of “‘in loco parentis.’”[32] The court found that under the common law, “‘in loco parentis’ relationships can form after the dependent is 18 or after the onset of the disability.”[33] Chapman still had to prove that “she intended to, and did, assume a parental role of Sharon.”[34] Although the district court would have to answer this question, the 6th Circuit provided it with guidance.[35] Looking to the common law, the court concluded that the in loco parentis relationship can begin “during adulthood when one adult becomes unable to care for themself.”[36] Because merely caring for one who is seriously ill is not enough to create the in loco parentis relationship,[37] the court looked to the common law for the elements of the relationship between two adults.[38] The court held that under common law the in loco parentis relationship “can form between adults, including adults who [are] siblings.”[39]

The primary element of the relationship is intention.[40] Determining intent requires evidence that the “person [took] on the role of a parent by ‘assuming obligations’ of a parental nature, [and] whether they have done so ‘with the intention of serving as a parent.’”[41] The fact that one “has provided for another as a parent might” creates a strong inference in favor of finding the relationship exists.[42] “The person ‘must still have intended to assume’ that role.”[43] This relationship “‘must reside in the minds and hearts of the parties involved.’”[44]  Evidence of this relationship can be direct by showing “that the parties thought of themselves as parent and child, including their internal communications and statements to others” showing that they viewed themselves as being in a parent-child relationship.[45] “Courts look for ‘objective manifestations’ of a parent-child relationship, including ‘the kind of service done and the kind of thing given.’”[46]

In summary, the in loco parentis relationship under the FMLA, as informed by the common law, can arise after one reaches the age of majority and when the disabling condition arises post-majority. There is no checklist of “acts or conduct . . . necessary to show a parental relationship.”[47] Factors to consider are assisting with day-to-day activities and providing financial assistance, how the parties think of the relationship, and whether the in loco parentis parent assumes a parental role, such as “exercising control over or assuming obligations toward the in loco parentis child.”[48] The 6th Circuit remanded for the district court to apply the court’s guidance and determine if the sisters had an in loco parentis relationship.[49]

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Dale Conder Jr. is a partner with Rainey, Kizer, Reviere & Bell PLC, and has been with the firm since graduating in 1992 from the University of Tennessee College of Law. His practice focuses on governmental tort liability, employment law and §1983 litigation.

NOTES

[1] 124 F.4th 382 (6th Cir. 2024).

[2] Id. at 390-91.

[3] Id. at 388.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 388-89.

[14] Id. at 389.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 390.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Saginaw Chippewa Indian Tribe v. BlueCross BlueShield, 32 F.4th 548, 557 (6th Cir. 2022).

[27] Chapman, 124 F.4th at 391.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at 390-91.

[33] Id. at 391.

[34] Id.

[35] Id.

[36] Id. at 395 and 397.

[37] Id. at 392.

[38] Id. at 395 and 397.

[39] Id. at 397.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id. at 398.

[45] Id.

[46] Id.

[47] Id.

[48] Id. at 399.

[49] Id. at 400.

Thank you for your continued support of our Labor & Employment Law Section. As a reminder, our annual forum will take place on May 2. We will have sessions on arbitrating employment disputes, values-based professionalism, workplace privacy, the current state of DEI initiatives and a case law update. You won't want to miss this informative program, especially since your section membership includes a discount on all Labor & Employment-sponsored CLE!

In the meantime, you don’t have to wait to connect with colleagues: the section directory is a great resource for meeting other in-house attorneys or for referrals. We hope we see you at the forum, and if you have thoughts or ideas for future section initiatives, please don’t hesitate to reach out.

The 23rd edition of the Alimony Bench Book is now available. Published by the TBA’s Family Law Section, the book provides a ready resource for dealing with alimony cases in Tennessee. Current Family Law Section members can access their copy at no cost on the Family Law eCommunity page but must be logged into their TBA account. Others may purchase an electronic copy for $25 from the TBA Store.

The TBA Young Lawyers Division is partnering with Legal Aid Society of Middle Tennessee and the Cumberlands for an expungement clinic on May 19. Volunteers are needed from 4-7 p.m. CDT at Doors of Hope located at 428 E. Bell St., Murfreesboro, TN 37130. Contact Morgan Hanna for more information and to volunteer.

KAREN NELSON MOORE, Circuit Judge. Ohio Attorney General Dave Yost has eight times rejected a proposed summary of a proposed constitutional amendment, preventing its proponents from circulating a petition and collecting signatures needed to place it on the ballot. Each time, Yost concluded that the petition summary was not a fair and truthful summary of the proposed constitutional amendment. The district court held that this likely violated the ballot- initiative proponents’ First Amendment rights and entered a preliminary injunction ordering Yost to certify two ballot initiative summaries proposed by Plaintiffs here. However, upon Yost’s request, the district court stayed the preliminary injunction pending appeal. Because we agree with the district court that Plaintiffs’ First Amendment rights were likely violated here, and because the other stay factors do not weigh in Yost’s favor, we GRANT Plaintiffs’ motion to lift the stay and LIFT the stay entered by the district court.

Defendant, Ashley Bianca Ruth Kroese, appeals the denial of her motion to correct clerical errors in her judgments. On appeal, she claims the trial court erred by summarily denying her motion and failing to enter corrected judgments to include jail credit for the time she was on home confinement pending trial. Because the record is inadequate for meaningful review, we affirm the judgment of the trial court.

Defendant, Natasha Lynn Bryant Fults, was indicted by a Warren County Grand Jury on two counts of tampering with evidence. See T.C.A. § 39-16-503. Pursuant to a plea agreement, she pled guilty to both counts with the trial court to determine the length and manner of service. The trial court sentenced Defendant as a Range I offender to serve five years incarcerated. Defendant appeals, arguing the trial court abused its discretion by not sentencing her to split confinement or alternative sentencing. Following our review of the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

Defendant, Anthony T. Braden, was convicted by a Humphreys County jury of two counts of aggravated sexual battery. The trial court imposed an effective ten-year sentence. Defendant appeals, arguing that the trial court committed plain error in finding that the victim had properly authenticated the video-recorded forensic interview under Tennessee Code Annotated section 24-7-123(b)(1). Upon our review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

This appeal concerns the termination of a father’s parental rights. Richmond S. and Lisa S. (“Petitioners”) filed a petition in the Chancery Court for Fentress County (“the Trial Court”) seeking to terminate the parental rights of Cory S. (“Father”) to his minor children Dawson S. and Bentley S. (“the Children,” collectively).1 The Children were removed from Father’s custody following an incident in which Bentley was severely injured. After a hearing, the Trial Court entered an order terminating Father’s parental rights on five grounds, including severe child abuse. Father appeals, arguing among other things that he did not intentionally or knowingly harm Bentley. We vacate the Trial Court’s waiver of a home study of Bentley in Petitioners’ home because Tenn. Code Ann. § 36-1-116 requires that such a study be conducted when the child, like Bentley, is unrelated to the prospective adoptive parents.2 Otherwise, we find that each of the grounds for termination found by the Trial Court were proven by clear and convincing evidence. We find further, also by clear and convincing evidence, that termination of Father’s parental rights is in the Children’s best interest. We remand to the Trial Court for a home study to be conducted in compliance with Tenn. Code Ann. § 36-1-116.