DOL Wants FMLA to Cover Same-Sex Couples

The U.S. Department of Labor (DOL) is seeking to extend coverage of the federal Family and Medical Leave Act (FMLA) to same-sex couples following a Supreme Court ruling that federal benefits cannot be limited based on a definition of marriage as a union between one man and one woman.

In United States v. Windsor, 133 S. Ct. 2675 (2013), the Court found the Defense of Marriage Act’s definition of marriage unconstitutional for treating same and opposite-sex couples differently under federal law.

FMLA entitles eligible employees to unpaid leave for family, medical and military- related reasons. Currently, an employee in a same-sex marriage may not be eligible to take FMLA leave to care for a partner, a partner’s child or a partner’s parent with a serious health condition. The DOL’s proposal would change that by giving same-sex marriages equal access to FMLA benefits currently enjoyed by opposite-sex marriages.

In determining the legal status of marriages and qualification for leave benefits under the FMLA, the new rule adheres to state law where the couple was married rather than their current state of residence. The DOL says this will ensure equal protection for all valid marriages under federal law. The rule change provides married same-sex partners with leave to care for a spouse or a child or parent of the employee’s spouse.

The DOL is currently accepting comments on its proposal. The full text of the NPRM, as well as information on the deadline for submitting comments and the procedures for submitting comments, can be found at

Additional Information

For additional information, please contact Mike Buck, Chair of Benesch’s Labor & Employment Practice Group, at or 216.363.4694.

Supreme Court Issues Decisions that Change Employment Law Landscape

The U.S. Supreme Court wrapped up its 2013 session by handing down three decisions that may significantly affect recent controversial rulings by the National Labor Relations Board, Affordable Care Act mandates on employer birth control coverage and union fees imposed on certain government employees.


In National Labor Relations Board v. Noel Canning, the Court invalidated President Barack Obama’s recess appointments in 2012 to the five-member Board, an administrative agency that decides whether an employer engaged in unfair labor practices.  The Court held the President’s appointment of three members to the Board was unconstitutional because the Senate, which normally advises and consents on such appointments, was not in a sufficiently long enough recess to invoke the Recess Appointments Clause of the Constitution. 

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Employers May Now Have To Provide Employees With The Added Comfort Of Working From Home

The Sixth Circuit Court of Appeals has put employers on notice that they may need to accommodate employees with disabilities by allowing them to work remotely from home, forcing employers to reconsider whether a physical presence in the office is an essential job function.

With its decision in EEOC v. Ford, 2014 U.S. App. LEXIS 7502 (6th Cir. 2014), the court has redefined what employers can deem to be the essential job functions of their employees.  Now absent from this list is the need to attend work at a brick-and-mortar location.   Continue reading

Some Employers Likely to See Increased Litigation Costs in EEOC Cases

Employers in Indiana, Illinois, and Wisconsin are likely to see their legal fees increase as a result of a Seventh Circuit decision that allows the U.S. Equal Employment Opportunity Commission to file suit immediately instead of first trying to negotiate a settlement with the employer.   Continue reading

NLRB Stands Behind Swearing Salesman

Employers beware: the National Labor Relations Board (“Board”) decided that an employer, a car dealership, unlawfully discharged an employee after his lewd outburst in a meeting. On remand from the United States Court of Appeals for the Ninth Circuit, the Board reapplied the four-factor Atlantic Steel balancing test to determine if the employee’s outburst was concerted activity or whether he in fact sacrificed his protection under the National Labor Relations Act (“NLRA”). Continue reading

President Obama Calls for Revisions to FLSA’s Overtime Regulations

On March 13, 2014, President Obama signed a Presidential Memorandum that directed Secretary of Labor Tom Perez to review the Fair Labor Standards Act (“FLSA”)[1]  and revise the  regulations that define who qualifies for overtime protection.  The Memorandum was spurred by what President Obama sees as the degradation of the spirit of FLSA—if you work more, you are paid more—leaving millions of low-paid salaried workers without overtime protection.[2]  “I’m directing Tom Perez, the secretary of labor, to restore the commonsense principle behind overtime,” Obama said.  “If you go above and beyond to help your employer and your company succeed, then you should share a little bit in that success.” Continue reading

BYOD: Where the Employee and the Enterprise Intersect

The proliferation of bring your own device programs – or “BYOD” as it is commonly referred – has drastically changed today’s corporate workplace environment. Employees are availing themselves of smart phones, tablets, and other personal handheld devices to perform the duties that encompass their employment. With more prevalent use of personal devices for work related activity, “an organization must think beyond technological challenges; it must address business policies, management processes and governance as well.”[1] Continue reading