Wednesday, February 25, 2015

Under Final FMLA Rule, Rights for Same-Sex Spouses Will Be Based On "Place of Celebration"

On February 23, 2015, the Department of Labor (“DOL”) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.

The changes to the rules are the result of last year’s U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (“DOMA”) which defined “marriage” for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined “marriage” for FMLA purposes as male-female. With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence. That is because Section 2 of DOMA, which was not addressed in the Windsor decision, says that a state does not have to recognize a same-sex marriage, even if it was valid in the state where it was entered.

Under the new rule, “place of residence” will be replaced with “place of celebration” to determine the validity of a marriage for FMLA purposes. In other words, if a same-sex couple was validly married in any state, they are spouses for FMLA purposes regardless of where they live. If same-sex couples are married outside of the United States, they will be considered spouses for FMLA purposes as long as the marriage:  1) was valid where entered, and 2) would be considered valid in at least one state.

The Supreme Court announced in January of this year that it has decided to review the right of states to ban same-sex marriage. As a result, the changes to the rule may prove to be unnecessary if the Supreme Court overrules Section 2 of DOMA and rules that a valid same-sex marriage must be recognized by other states.

Wednesday, February 11, 2015

Government Shutdown Leads to Fewer EEOC Charges, But Retaliation Claims Continue to Lead the Pack



The EEOC released its FY2014 (Oct. 1, 2013 – Sept. 30, 2014) enforcement statistics last week.

Overall, the EEOC reported a decrease in filed charges compared with recent years.  The agency attributed the 5.2 percent decline from FY2013, at least partially to the government shutdown in October 2013. However, it also appears that apart from the shutdown, charges are slightly declining in recent years with FY2013 showing a 5.7 percent decline from the prior year.

As in prior years, retaliation claims were the most frequently filed charge in FY2014. As such, it may be timely to revisit your anti-retaliation policies and other prevention measures.The EEOC reported the FY2014 breakdown of charge allegations nationwide as follows:

  • Retaliation under all statutes: 37,955 (42.8% of all charges filed)
  • Race (including racial harassment): 31,073 (35%)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3%)
  • Disability: 25,369 (28.6%)
  • Age: 20,588 (23.2%)
  • National Origin: 9,579 (10.8%)
  • Religion: 3,549 (4.0%)
  • Color: 2,756 (3.1%)
  • Equal Pay Act: 938 (1.1%)
  • Genetic Information Non-Discrimination Act: 333 (0.4%)
Minnesota bucked the national trend of declining charge numbers with a near-level total of 981 total charges compared with 982 in FY2013.  State charge allegations generally followed the national trend, but with higher rates of retaliation, disability, and age charges.

  • Retaliation under all statutes: 567 (57.8% of charges filed in Minnesota)
  • Disability: 376 (38.3%)
  • Race (including racial harassment): 360 (36.7%)
  • Sex (including pregnancy and sexual harassment): 260 (26.5%)
  • Age: 266 (27.1%)
  • National Origin: 122 (12.4%)
  • Religion: 41 (3.8%)
  • Color: 37 (3.8%)
  • Equal Pay Act: 17 (1.7%)
  • Genetic Information Non-Discrimination Act: 6 (0.6%)

Thursday, February 5, 2015

Minnesota WESA – Round II: Are Paid Sick Leave and Expanded Family Leave Protections on the Way?

In conversations with clients and employment law colleagues, I have dubbed 2014 “the year of the employee handbook.” In the wake of the passage last year of the Minnesota Women’s Economic Security Act (WESA), Minnesota employers were required to update employee handbooks and practices to address new wage disclosure rights, new anti-discrimination protections, and, as applicable, expanded protections for pregnancy, parental leave, and the use of employer-provided sick time.

If certain Minnesota DFL Senators have their way, Minnesota employers may need to pull out those handbooks and update their policies and practices all over again. Earlier this week, several DFL Senators introduced a proposed bill (SF 481) that would require all Minnesota employers to provide paid sick and “safe” time off benefits to most employees. In addition, the proposed bill would expand the pregnancy accommodation and parental leave provisions enacted as part of WESA last year.

Paid Sick and Safety Leave?

Starting with sick and “safe” leave, neither federal or Minnesota law currently require Minnesota employers to offer paid time off in the form of vacation, sick time, or PTO (e.g. combined sick and vacation time) benefits to employees. There is, however, a growing movement throughout the U.S. to increase employee pay and job security, including through the provision of mandated paid sick time. Currently, only a handful of states and a small number of municipalities mandate paid sick time, but grass roots organizers want this to change.

This pay and benefits battle is now playing out on the Minnesota stage. While it is not clear that SF 481 will successfully pass through Minnesota’s Republican-controlled House of Representatives, the bill, if enacted, would have a significant impact on employers. It would apply to all employers, regardless of size, and impose the following requirements:
  • All Minnesota employers would be required to provide paid sick and “safe” time off to any employee who has performed at least 680 hours of work or worked for the employer for at least 17 weeks.
  • The new law would require the accrual of at least one hour of sick time for every 30 hours worked. The total accrued time would be capped at (1) 40 hours per calendar year for employers with fewer than 21 employees; and (2) 72 hours per calendar year for employers with 21 or more employees. Paid sick and safe time would begin accruing at the start of employment, but could not be used until after 90 days of employment. Employees, regardless of non-exempt or exempt status, would have to be allowed to use accrued time off in one hour increments.
  • Sick time could be used by the employee for (1) his or her own illness or medical appointments; (2) to care for an eligible sick family member; (3) when necessary due to domestic abuse, sexual assault, or stalking of the employee or an eligible family member; or (4) when the employer shuts down due to weather or an emergency.
  • If an employee’s absence lasted at least three consecutive days, an employer could request certain “reasonable documentation” to verify the need for the absence.  In addition, the employer may require seven days’ advance notice for foreseeable time off.
  • Employers with existing paid time off policies could continue those policies as long as the policies satisfied the minimum requirements of the new law.
  • Employees taking paid sick or “safe” leave would have job protection and anti-retaliation rights.
  • An employer would be prohibited from requiring an employee using paid sick or safe time benefits to seek or locate a replacement worker to cover the employee’s hours.
  • An employer would be required to provide notice of available paid sick and safe time benefits in its employee handbook.
Pregnancy Accommodation and Parent Leave Expansions?

The new proposed bill would also revisit and expand pregnancy and parental leave protections put in place last year as part of WESA. Under WESA, employers with at least 21 employees are obligated to grant reasonable accommodations to eligible pregnant employees. In addition, employers of this size must grant eligible employees up to 12 weeks of parental leave for prenatal care, pregnancy-related health conditions, or the birth or adoption of a child. SF 481 would expand these WESA protections to employers of all sizes, requiring a Minnesota employer with one or more employees to comply with WESA’s pregnancy accommodation and parental leave provisions.

What to Do?

As noted above, it remains to be seen whether SF 481 will gain any traction in the Minnesota legislature. The bill does, however, reportedly have some bipartisan support. Employers should be sure to stay tuned and, if inclined, can contact members of the Minnesota state legislature to voice their opinion on SF 481. Here at GPM, we will be keeping our eyes open and our ears to the ground, and we will update you if SF 481 ends up becoming new law.