Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

The National Defense Authorization Act for Fiscal Year 2010 further expands the recent amendments to the Family and Medical Leave Act (FMLA), which provides leave to qualified employees to care for family members with needs relating to military service.   However, for those employers who rely exclusively on the Department of Labor website for their required postings and certification forms, beware - portions of the Department of Labor’s website have not yet been updated to reflect these changes and reliance upon these outdated materials may cause an employer to inadvertently, yet unlawfully, deny an employee his or her rights under the FMLA.

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In what has been deemed a victory for many non-traditional families, on June 22, 2010, the U.S. Department of Labor (“DOL”) issued an opinion clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”).  Now, according to the Administrator’s Interpretation Letter No. 2010-3, any employee who “intends to assume the responsibilities of a parent with regard to a child” and has either “day-to-day” responsibilities for, or “financially supports” that child, is entitled to leave under the Act -- even if that employee does not have a traditional biological or legal relationship with the child.

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In a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that whether a plaintiff with a claim under the Family and Medical Leave Act (“FMLA”) can recover front pay (and how much) is a question for a judge to decide, not a jury.  Under some statutes, such as Title VII of the Civil Rights Act, courts have express discretion to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement … or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g).  It is well established under Title VII that a court can decide to substitute front pay for reinstatement in some instances, such as when there is a significant degree of animosity between the parties or when reinstatement could displace other employees.

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Employees who have family members serving in the armed forces will have new expanded rights under Section 565 of the recently-enacted National Defense Authorization Act for Fiscal Year 2010.  This provision further amends the Family and Medical Leave Act (FMLA), which was amended only a year ago to allow leave to care for family members with needs relating to military service.

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