cross, gunter, witherspoon & galchus, p.c. 1 missy mcjunkins duke cross, gunter, witherspoon...

Cross, Gunter, Witherspoon & Galchus, P.C.1

Missy McJunkins DukeCross, Gunter, Witherspoon & Galchus500 President Clinton Ave., Suite 200Little Rock, AR 72201(501) 371-9999(501) 371-0035 (fax)[email protected]

FMLA Update


Definition of “Spouse”• DOL issued Final Rule on February 25, 2015. • Final Rule revises the definition of spouse as

contained in the regulations.• Definition of spouse under FMLA regulations

is amended – eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouses or family members, regardless of where they live.

• Effective Date: March 27, 2015 . . .

BUT . . .


Definition of “Spouse”

• On March 26, 2015, in Texas v. United States, Case No. 7:15-cv-00056 (N.D. Tex.), the court granted a request made by TX, AR, LA, and NE for a preliminary injunction.

• What does that mean for Arkansas?



• Final Rule– DOL has moved from “state of residence” rule to

“place of celebration” rule.– Must look to the law of the place in which the

marriage was entered into, in contrast to the law of the state in which the employee resides.

– Place of celebration rule allows all legally married couples (same-sex, opposite-sex, and common law marriages) to have consistent FMLA rights

regardless of where they live.



• Final Rule– Law includes individuals in marriages that were

entered into outside of the US if they could have been entered into in at least 1 state.


Definition of “Spouse” – Practical Impact

• Now, eligible employees – regardless of where they leave – will be able to:– Take FMLA leave for their lawfully married same-

sex spouses with a serious health condition– Take qualifying exigency leave due to their

lawfully married same-sex spouses’ covered military service, or

– Take military caregiver leave for the lawfully married same-sex spouses.


Definition of “Spouse” – Practical Impact

• Other results– Eligible employees will be able to take FMLA

leave for their stepchildren (children of employees’ same-sex spouses) regardless of whether the in loco parentis requirement is met.

– Eligible employees will be able to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco

parentis to the employee.


Lupyan v. Corinthian Colleges 761 F.3d 314 (3d Cir. 2014)

• Plaintiff was a college instructor. • Requested a personal leave of absence due to

depression.• Manager suggested she apply for STD.• Plaintiff provided certification from health

care provider.• College determined she was eligible for leave.



• Plaintiff meet with college officials and was told to check the FMLA box in her request for leave form.

• FMLA rights not discussed at meeting.• College said it mailed her a letter that

afternoon advising her that leave was FMLA leave and explaining FMLA rights.

• Plaintiff denied receiving letter.



• Plaintiff didn’t notify college that she would be able to return to work (with restrictions) until 2 weeks after her 12 weeks of FMLA had expired.

• College couldn’t accommodate restrictions, and she was not allowed to return to work.

• Plaintiff provided release to return to work without restrictions 18 weeks after leave

began.



• College told her that due to low enrollment and her failure to come back to work at end of 12 weeks of FMLA leave, she was being terminated.

• Plaintiff sued saying that college’s failure to give her notice had interfered with her FMLA rights.

• Trial court denied SJ because said there

was question as to whether Plaintiff got notice.



• College then filed amended SJ motion arguing Mailbox Rule (presumption of receipt if one can show letter was mailed/given to postal carrier). College used affidavits.

• Trial court then granted SJ to college.• On appeal, Third Circuit said Mailbox Rule

was just rebuttable inference of fact.• Plaintiff’s claim she didn’t receive

overcame inference.



• Third Circuit slammed “self-serving affidavits” as proof.

• Took issue with fact that letter was only sent regular mail with no certified letter receipt, tracking number, or signature.

• No direct evidence of receipt or non-receipt – court said unfair to make Plaintiff prove a negative.



• “In this age of computerized communication and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.”

• Plaintiff’s denial of receipt of the letter was enough to preclude summary judgment.


Dalpiaz v. Carbon County 760 F.3d 1126 (10th Cir. 2014)

• Employee took leave after car accident but didn’t return the FMLA paperwork until after receiving multiple requests and extensions of time.

• Made only a meager attempt to submit to an IME, which employer requested after receiving reports of employee engaging in physical activities inconsistent with her injury.


Dalpiaz v. Carbon County 760 F.3d 1126 (10th Cir. 2014)

• Employee was terminated for failure to timely submit forms, failure to schedule the IME, and abuse of sick leave.

• In affirming judgment for employer on FMLA interference claim, the court said it did not matter that instructions that employee didn’t comply with were related to FMLA leave.


Lopez v. Lopez997 F. Supp. 2d 256 (D.N.J. 2014)

• Employee had recently returned from stress-related FMLA leave.

• Employee picked up computer monitor and slammed it on his desk, scaring co-workers.

• Employee was allowed to take another leave following incident, but he was terminated when he returned to work.

• Employee sued, claiming retaliation under

the FMLA.


Lopez v. Lopez997 F. Supp. 2d 256 (D.N.J. 2014)

• Employee cited timing of his leaves and termination, including fact that employer question legitimacy of 2nd leave.

• Court said computer monitor incident was a legitimate, non-discriminatory reason for termination and there was no evidence of pretext.


Hamilton v. Republic Airways Holdings (S.D. Ind. 2014)

• Flight attendant was terminated for refusing to handle an assigned flight and for attempted abuse of FMLA leave.

• Recorded phone calls showed that employee had repeatedly tried to avoid the assignment because she didn’t have change of clothes or personal items with her.

• After being told that refusing assignment was against policy, she then said she had a


Hamilton v. Republic Airways Holdings (S.D. Ind. 2014)

migraine and said just to call her off due to FMLA.

Court said employer had sufficient grounds to honestly and reasonably suspect FMLA misuse.


Ballard v. Chicago Park Dist.741 F.3d 838 (7th Cir. 2014)

• Daughter, who worked for the City of Chicago, took her terminally ill mother on a trip to Las Vegas.

• She was denied her requested FMLA leave to take her mother to Las Vegas and was fired a few months later for accumulated absences.

• The city argued that taking her mother on the trip did not qualify as “caring” for her mother under FMLA.

• The 7th Circuit split with 1st and 9th Circuit precedent and held that her conduct did qualify as providing care under FMLA.


Jackson v. City of Hot Springs751 F.3d 855 (8th Cir. 2014)

• Plaintiff that worked for City of Hot Springs was terminated after he was unable to return to work from medical leave that expired and he was not able to return to work. He was not rehired. Sued under FMLA, ACRA, ADA, and Rehabilitation Act.

• Jury verdict for employee on ACRA and FMLA. • Court granted judgment for City on Rehabilitation Act. • Awarded lost wages but vacated the jury’s award for

emotional distress damages on FMLA retaliation claim.


• On appeal, the Court held that it was for the jury to decide whether the Plaintiff could perform the essential functions of his job at the time the City did not rehire him and whether a causal link existed between failure to be rehired and his use of FMLA leave were for the jury deciding FMLA leave claim.

• Plaintiff failed to demonstrate he suffered any adverse employment action as result of ACRA disability discrimination.

• District Court’s denial of liquidated damages under FMLA was abuse of discretion. Hot Springs did point to original reason evidence that it acted in good

faith.


Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014).

• Plaintiff was granted leave under FMLA to care for her daughter, who was undergoing treatment for thyroid cancer.

• Plaintiff was terminated from her position before the date of her leave’s outer limit.

• Harbor Crest argued that Plaintiff did not actually qualify for FMLA leave because caring for her daughter’s children did not qualify as “care” under FMLA.


• Court held that the FMLA does not treat care of grandchildren as disqualifying, if the employee also cares for an eligible relative such as a daughter.

• Court states that caring for grandchildren qualifies as psychological assistance to the eligible relative.


Questions?

• [email protected]

cross, gunter, witherspoon & galchus, p.c. 1 missy mcjunkins duke cross, gunter, witherspoon...

Documents

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sex spouses

definition of spouse

fmla update slide

sex marriages

fmla regulations

fmla box

results eligible employees