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DOL Proposes FMLA for Eligible Employees in Same Sex Marriages

Posted on Fri, Jul 18, 2014 @ 09:59 AM

by Jack B. HarrisonJack B. Harrison

Recently, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking under which it stated its intentions to extend the protections of the Family and Medical Leave Act (“FMLA”) to all eligible employees in legal same-sex marriages regardless of the state in which they live.  In releasing the proposed rule change, the DOL described the purpose of this proposed rule change as follows:

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.

Under the proposed rule change, the regulatory definition of “spouse” would be changed to allow eligible employees in a legal same-sex marriage to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Under the current regulatory definition of "spouse," only same-sex spouses who reside in a state that recognizes same-sex marriage are able to take advantage of FMLA leave.  The proposed rule would define “spouse” for FMLA purposes 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.

Thus, under the proposed rule change, coverage under the FMLA would be based on the law of the place where the marriage was entered into (“state of celebration” as opposed to “state of residence”), which would allow legally married same-sex couples to be eligible for FMLA family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

Under the process following the issuance of a Notice of Proposed Rulemaking, interested parties may submit comments on the proposed rule at www.regulations.gov.  Interested parties who wish to provide comments on the proposed rule must do so on or before August 11, 2014.

Employers, particularly those in states that do not currently recognize same-sex marriages, should closely follow the developments surrounding this proposed rule.  Assuming the rule is adopted, employers should be prepared to modify their leave policies to bring them in line with the new rule.  Cors & Bassett will continue to monitor developments related to this proposed rule and will provide updates as appropriate.

Tags: Family and Medical Leave Act, FMLA

Employee Handbooks 101: "Must Have" Provisions

Posted on Mon, Sep 09, 2013 @ 02:04 PM

Jack B. Harrisonby Jack B. Harrison

It is extremely important that employers periodically review with their employment counsel their Employee Handbook to insure that it accurately sets forth the employer’s policies and goals in a clear manner so that all employees know exactly what is expected of them as employees.  Clearly articulated policies and goals contained in the Employee Handbook can, at times, limit an employer’s legal liability by providing a valid defense to certain claims.  Below are some of the policies that should be included in every Employee Handbook.  This list is certainly not meant to be exhaustive, but is intended to provide guidance as to some important provisions that should be contained in an Employee Handbook.

Discipline Policy

Employees need to be provided with clearly articulated expectations of what conduct will or will not be tolerated in the workplace.  The Discipline Policy should set forth the steps that will be followed in the event of a disciplinary action.  Management personnel should be periodically trained on these steps and on the importance of documenting that all disciplinary steps have been followed.

Statement Concerning Equal Employment Opportunity (EEO)

The employer’s EEO policy should provide a clear statement of the employer’s intent to provide fair and equal treatment to all employees in all terms and conditions of employment, regardless of the employee’s race, color, sex, age, disability, religion, national origin, veteran status and/or any other status protected by applicable federal, state or local laws.  Like all policies, an EEO policy should be part of the training of all management personnel and should be periodically reviewed to insure that it is consistent with any changes that might occur in the law.

Statement Regarding At-Will Employment

An Employee Handbook should contain a statement making it clear that employment is at-will, meaning that the employment may be terminated by either the employer or employee at any time, without reason or notice.  This statement should also make it clear that the Employee Handbook does not create a contract for employment.  Additionally, the statement should inform employees that any policies set forth in the Employee Handbook can be modified at any time by the employer.

Statement Prohibiting Harassment and Discrimination

Related to the employer’s EEO policy or statement, this statement makes it clear to all employees that discrimination, harassment and retaliation in the employer’s workplace that is based on a person’s race, color, religion, national origin, sex, age, disability, veteran status or any other classification protected by federal, state or local law is prohibited and will not be tolerated.  In addition to the clearly articulated statement of the employer’s intent, this statement should include the various processes by which an employee may complain if the employee believes he or she has been the victim of harassment, discrimination or retaliation.

Statement Regarding Family and Medical Leave Act

Under federal law, where an employer employs fifty or more employees, the employer must comply with the Federal Family and Medical Leave Act.  The FMLA provides eligible employees 12 weeks of unpaid leave each leave year.  The FMLA requires that an employer’s Employee Handbook contain an FMLA policy statement.

Statement Regarding Confidentiality and Trade Secrets

A statement in the Employee Handbook regarding confidentiality and trade secrets should clearly state that, during the course of their employment, employees have or may have access to confidential and proprietary information and trade secrets that are the sole property of the employer.  The statement should inform employees that they are required to keep this information confidential both during the course of their employment and following the termination of their employment.  This statement should articulate policies and guidelines for how such information is to be managed and handled by the employees.

Statement Regarding Electronic Communications

Given that many employees make use of workplace computer systems and other company owned equipment in the context of their employment, Employee Handbooks should make it clear that the employer reserves the right to review and monitor all information that passes through their computer systems and equipment.  Employees should be informed that they should have no expectation of privacy related to any communication that takes place using employer owned computers or equipment, regardless of whether the communication is business related or personal.

Tags: Employee Handbooks, At-Will Employment, Discipline Policy, EEO, Equal Opportunity Employment, Discrimination, Family and Medical Leave Act, Trade Secrets, Electronic Communications, Harassment, FMLA