New Department of Labor Definition of Spouse Means Changes Under FMLA

I like when I get the opportunity to refresh everyone’s memory on regulatory issues while reporting a change in policy.  So in order for you to get to the “good stuff” you have to tolerate my FMLA lesson of the day.   Remember that FMLA can be invoked for a number of reasons:  

 

 A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:

·         for the birth of a son or daughter, and to bond with the newborn child;

·         for the placement with the employee of a child for adoption or foster care, and to bond with that child;

·         to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a serious health condition;

·         to take medical leave when the employee is unable to work because of a serious health condition; or

·         for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

Refer back to the third bullet point above.    You may have heard the recent news.  In a June decision, the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that defined marriage as between a man and a woman for purposes of federal law. United States v. Windsor, 133 S.Ct. 2675 (2013)  Whether or not this affects your company depends largely but not completed on what state you are located in and under what state laws you are operating.   There are various designations between the states when it comes to same-sex marriage.  Some allow marriage, some allow unions permitting privileges same as marriage, while some outright ban same-sex marriage.   Massachusetts was the first state to legalize same-sex marriage in 2004.  Among those who consider it legal:  Delaware, Maryland and the District of Columbia.  But even if you are operating in a state where same-sex marriage is banned you may still be effected.  

It has recently been reported that the Department of Labor has released an internal memorandum guiding employees on the effects of this decision.  That I cannot verify.  However, I do know that the DOL recently changed it’s definition of spouse.  It now reads:

Spouse: Spouse means 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.

Because of this, there are  plenty of changes going on as I write.  This expanded definition calls for revisions to federal entitlements of many people.   In order to ascertain the ramifications of this on your organization consider for a moment the impact of this decision on governmental agencies whose benefit decisions are based on marital status, more often than not.   The Windsor case itself was based upon the IRS’ assessment of estate tax for a surviving spouse who was part of a couple residing in a state where same-sex marriage was legal.  For an example, leaving your estate to your spouse in PA results in inheritance tax of 0% versus leaving it to an unrelated party which results in a tax of 15%.   The impact on government sponsored benefits will be astounding. 

But since I have no crystal ball, let’s get back to FMLA.  Until more direction is provided by the DOL, employers should be cautious not to deny FMLA leave to a same-sex couple where their state of residence is a state where same-sex marriage is legal.     Review any forms or policies you have put in place to make sure they allow for this expanded definition of spouse and pay attention to any supplemental guidance offered by the DOL in the months to come.   

 

U.S. COURT OF APPEALS FOR THIRD CIRCUIT, IN CASE ARGUED BY LOUIS J. CAPOZZI, JR., VACATES NLRB DECISIONS AND REFUSES TO ENFORCE ORDERS BECAUSE BOARD LACKED SUFFICIENT MEMBERS WHO WERE PROPERLY APPOINTED BY THE PRESIDENT

BRUCE J. BARON, ESQ.

 

On May 16, 2013, a three-judge panel of the Court issued a 2-1 panel decision on a NLRB petition to enforce its decisions in an Unfair Labor Practice proceeding that grew out of a dispute about whether Charge Nurses at a New Jersey Nursing Home were Supervisors that could not be unionized: NLRB v. New Vista Nursing and Rehabilitation, LLC.  New Vista, represented by Louis J. Capozzi, Jr., Esq., filed its own action before the Court to have the Board’s decisions vacated and enforcement denied, in part because, when the decisions were issued the Board did not have sufficient members who were properly appointed by the President to sustain its jurisdiction and authority to issue such decisions.  The National Labor Relations Act (NLRA) requires that there be three (3) properly appointed members of the Board involved in order for the Board to take any action on case.  The Court determined that, when the Board issued the first decision in the ULP proceeding in August 2011and one of its decisions reconsidering the August 2011 one, it lacked the required three because one of those voting, Member Becker, had been appointed by President Obama as a Recess Appointment when the Senate was not “in recess” and therefore that his appointment was unconstitutional and void. 

 

The Court also vacated two later Board reconsideration decisions; and, while the Court did not expressly reach the question of whether the President’s similar Recess Appointments of three (3) members of the NLRB involved in those reconsideration decisions (including two current members) were likewise unconstitutional, the Court vacated those member’ decisions on that basis.  The U.S. Court of Appeals for the D.C. Circuit expressly held that those three members’ Recess Appointments were unconstitutional in a decision on January 25, 2013. 

 

The Federal Government, on April 25, 2013, requested the U.S. Supreme Court to agree to hear and overturn the D.C. Circuit decision.  The Federal Government is likely to take the New Vista decision to the Supreme Court as well.  It is widely believed that the Supreme Court will agree to hear the cases because both are in disagreement with older decisions by three other U.S. Courts of Appeal : the 2^nd , the 9^th and the 11^th Circuit (en banc); and, the issue involves conflicting views about the constitutional authority of the President and the U.S. Senate in official appointments.

 

The Third Circuit’s decision in New Vista addresses the arguments that the Federal Government made in response to the D.C. Circuit’s January 25, 2013 decision on the President’s Recess Appointment Power under Article II, Section 2, Clause 3 of the U.S. Constitution.  The majority decision is 98 pages long, with extensive analysis of historical sources.  The dissenting opinion is 55 pages long.

 

The Third Circuit decision results in our client Nursing Facility’s Charge Nurses continuing to be excluded from the Union bargaining unit.  Our Firm has successfully obtained confirmation of Charge Nursing Supervisor Status under the NLRA on the merits in prior cases before the NLRB. 

 

Many other NLRB enforcement actions are currently stalled in the U.S. Courts of Appeal while the jurisdiction and authority of the Board’s current two (2) Recess Appointment Members is being contested.  The President has submitted nominations for five (5) Members (including three of the current Members) to the U.S. Senate for confirmation; and, hearings on those nominations began on May 16, 2013.  The Board’s ability to enforce the NLRA will continue to be limited by the Recess Appointment litigation until either the Supreme Court resolves the Recess Appointment issue or a sufficient number of Members is confirmed by the Senate instead of being Recess Appointed.

 

 

Verification of Employment Eligibility turns profit for U.S. Immigration

Don’t miss this deadline.    May 7, 2013 marks that last date on which Employers may use the one page I-9 form OMB 1615-0047 bearing the expiration date of 8/31/12.    A new form has now been released and although it bears an effective date of May 8, 2013, Employers are being advised to utilize the form immediately and toss aside any and all non-compliant forms.  The new form has been expanded to two pages and provides six pages of instructions.   There do not appear to be many changes to the form.    Space for email address and phone number have been added and the guidance provided for aliens authorized to work is much more user friendly, identifying exact documents and required information.   The Employer now completes page 2 which is virtually the same information with additional space for input.

                The new form release follows the efforts of the U.S. Immigration and Customs Enforcement office (ICE) to crack down on non-compliant Employers.   Reports indicate that during 2012, the ICE audited over 3,000 businesses, 12 times more than the number audited in 2007.  These audits have resulted in more than $13 million in fines.  Texas and New Jersey were among the states most audited.  Fines vary based on severity or type of violation.    For hiring or continuing to employ a person knowing that the person is not authorized to work in the United States, fines range from $375 per occurrence for first offense to $16,000 for third offenses.  Failure to comply with the requirements of the I-9 form carries its own penalty of $110 to $1,100 for each inaccurate form.

                Strict rules govern documents which are acceptable in order to prove employment authorization.   List A, List B and List C have not changed but recall that in order to prove employability a potential worker must present either one item from List A OR an item from both List B and C.   This means that a US Passport trumps all.   No other documents are necessary.  However, a driver’s license does not have the same power.     A driver’s license must be accompanied by another document, one from List C, which may be a social security card or a birth certificate. 

                As a reminder, you should make sure that all new hires complete a form I-9, only ask an applicant to complete the form after you make an employment offer, maintain forms for three years after the date of hire or one year after the termination, whichever is later, make certain to follow up on expiring documents, maintain I-9’s in a file other than the employee personnel file, and strictly abide by the required documents list provided by the ICE.  Yes, I said follow up on expired documents.  You can be fined for continuing to hire a person who is ineligible for employment.  

                Don’t wait for the ICE to knock at your door.  Take compliance with this directive seriously.  Implement a self-audit protocol and make adjustments to your process based upon your findings.   Incorporate this protocol into the overall compliance program of the facility.   Then you will be ready when the ICE serves you a Notice of Intent to audit (NOI).