Retailers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).

New FMLA Poster

The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL, however, the February 2013 version of the FMLA poster can continue to be used to fulfill the FMLA’s posting requirement.

The Employer’s Guide to The Family and Medical Leave Act

According to the DOL, the Guide is intended to provide employers with “essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.” The Guide reviews issues in chronological order, beginning with a discussion of whether an employer is covered under the FMLA, all the way through an employee’s return to work after taking FMLA leave. The Guide includes helpful “Did You Know?” sections that shed light on some of the lesser-known provisions of the FMLA. The Guide also includes hyperlinks to the DOL website and visual aids to improve the reader’s experience. Overall the Guide helps navigating the complex FMLA process; however, it does not provide any guidance beyond the existing regulations.

Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “Department of Labor Releases New Persuader Rule Intended to Aid Union Organizing.”

The US Department of Labor has finally issued its long awaited Final Rule radically reinterpreting the “Advice Exemption” to the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA.”).  The Final Rule eviscerates any meaningful use of the Advice Exemption, which would be swallowed up by the new expansive definition of persuader activity which could include discussion regarding strategy, reviews of employer drafts and myriad other ways labor attorneys currently aid their clients including essentially any meaningful advice or counsel provided by labor counsel. The move comes just over two years to the day from the DOL’s 2014 postponement of its issuance of the Final Rule. …

Read the full post here.

 By Anna A. Cohen

In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of “spouse” in light of the United States Supreme Court’s decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013).   In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples.  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take FMLA leave, among other reasons, to care for the employee’s spouse who has a serious health condition.

1. Place of Residence Definition

In August 2013, the DOL issued updated FMLA guidance documents as a result of President Obama’s directive to the DOL to coordinate with other federal agencies to implement the Windsor decision.  This initial guidance removed references to DOMA, affirming the availability of spousal leave based on same-sex marriages under the FMLA; however, the DOL only expanded benefits to same-sex married couples residing in states that recognize same-sex marriage.  For example, updated DOL Fact Sheet # 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act defines a “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  This narrow definition of “spouse” is significant to retailers with locations in multiple states since only 19 states, to date, recognize same-sex marriage, whether by court decision, legislation or popular vote.  If the DOL codifies the place of residence definition of “spouse,” retailers with employees in a same-sex marriage who work in a state where their marriage is legally recognized, but live in a state where it is not, would not be entitled to FMLA benefits to care for their spouse. 

2. Place of Celebration Definition

Another option would be for the DOL to broaden the definition of “spouse” to recognize legally married individuals under any state law, regardless of the employee’s residence.  This definition would be consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act (ERISA).  In its ERISA Guidance, the DOL defined the term “spouse” as any “individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.”  If the DOL were to adopt the broad place of celebration definition of “spouse” contained in its ERISA Guidance when it amends the FMLA Regulations, FMLA benefits would be available to all legally married spouses, regardless of the definition of “marriage” in the state where the employee lives or where the employer operates.  Accordingly, employers would look to the place of celebration to determine whether employees are entitled to spousal benefits under the FMLA.  For example, retailers with employees who legally enter into a same-sex marriage in the Northeast would be considered legally married for purposes of the FMLA in all of the retailer’s locations, even if they subsequently live or work in a state which does not recognize that marriage.  

Regardless of the definition adopted by the DOL, employers in all states must be alert to this impending change.  Once the FMLA Regulations are amended, employers should review all FMLA-related policies, procedures, forms and notices.  Employers should also be aware of their obligations under state and local leave laws that may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in civil unions or domestic partnerships. We will continue to monitor the DOL’s position on same sex marriage as it affects the FMLA and other laws and regulations.

On Epstein Becker Green’s Management Memo blog, our colleague Adam C. Abrahms writes about the Department of Labor’s delay, once again, of its timeline for finalizing the Persuader Rule.

Below is an excerpt from the blog post:

As we noted in “First Kill All The Lawyers,” last November the DOL announced its intention to move forward this month with the Administration’s Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule . Yesterday, the DOL again delayed its timeline for finalizing the Rule.

In November the DOL’s announcement asserted that it intended to publish a Final Rule in March. On March 6, according to Bloomberg BNA, a DOL spokesman asserted that the Proposed Rule would NOT be made final this month. The DOL did not give a new target date for finalizing the Rule, rather it stated it would provide a new date in its Spring Regulatory Agenda which is not scheduled to be released for some months.

Read the full blog post, “Persuader Rule Postponed: Employers Get Temporary Reprieve from Assault on Attorney-Client Privilege.”