Proposed FMLA Rules to Address DOMA Issues by Providing a New Definition of “Spouse”

June 25, 2014 at 1:52 am | Posted in Uncategorized | Leave a comment
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Directly from the Department of Labor’s website:  

Proposed rule to extend Family Medical Leave Act protections to all eligible employees in same-sex marriages announced by US Labor Secretary.

WASHINGTON — U.S. Secretary of Labor Thomas E. Perez announced today a proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families would be made secure as a result of the proposed rule.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”
The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.

Following the Windsor decision, noting that it was “a victory… for families that, at long last, will get the respect and protection they deserve,” President Obama directed the Attorney General to work with the Cabinet to review federal statutes to ensure the decision, including its implications for federal benefits and obligations, is implemented.

For additional information on the FMLA, including information and fact sheets on the proposed revisions, visit http://www.dol.gov/whd/fmla/nprm-spouse. The department encourages all interested parties to view the proposed rule and submit comments at http://www.regulations.gov. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.

Major features of the new proposed rule:  

The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).

The proposed definition of “spouse” expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

The Department of Labor proposes to define “spouse” as follows:

Spouse, as defined in the statute, means a husband or wife. 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 in 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.

Comments from the Sensenig Law Firm:

What all of this means is that a whole lot of Handbooks are going to require a whole lot of revisions if the proposed Rule is approved.  Employers will need to become a bit more savvy as to laws outside of the “home” state.  The proposed rule is following along with the notion of “full faith and credit.”   I am sure the proposed rule will be hotly debated and this is just the first draft of proposed new FMLA language.  Each and every one of us has the ability to send our comments/opinions to the DOL about this proposed language, and the proposed Rule’s impact on the workplace.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

 

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New U.S. Department of Labor FMLA Regulations redefining “spouse”

June 20, 2014 at 2:01 pm | Posted in Uncategorized | Leave a comment
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The U.S. Department of Labor’s Wage and Hour Division today announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the Family and Medical Leave Act of 1993 (FMLA) in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. More information is available at the Wage and Hour Division’s FMLA NPRM Website.

See http://www.dol.gov/whd/fmla/nprm-spouse/ for more information.

The Rule has not been changed yet, but it is good to know the direction the DOL, the department charged with enforcing the DOL, is taking.  Stay tuned for more information!

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

New H-2A Sheep/Cattle/Goat Herder Wage and Housing Rules!

June 18, 2014 at 1:14 am | Posted in agriculture, Employee, Employer, Employment Law, H2-A, Harvesting, Immigration, New employment laws/amendments | Leave a comment
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The Department of Labor’s prior guidance on the minimum wages and housing that were required to be offered to cattle, sheep and goat herders (jobs that are not exactly coveted) under the H-2A visa program is no longer valid following a D.C. Court of Appeals case.  See Mendoza v. Perez, 2014 BL 165299, D.C. Cir., No. 13-5118, 6/13/14 .

The DOL guidance was found to be substantive rules that established standards under the H-2A agricultural guest worker program.  As such, they had to go through the rule making process, including the provision of a notice and comment period. That did not happen, so back to the drawing board for these H-2A regs!

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

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