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

The NDAA expands “exigency” leave to family members of members of regular armed forces who have been deployed to a foreign country.  The military caregiver provision has likewise been expanded to allow family members of veterans to take such leave, as long as the veteran was in active service during the five years previous to the date on which he or she needs care.  However, neither the "Employees Rights and Responsibilities under the Family and Medical Leave Act" poster nor the certification forms provided on the DOL website have been modified to reflect the new law.  An employer who relies on these materials may be unlawfully denying leave to those employees who are now eligible. 
 
To avoid liability, and confusion, employers should familiarize themselves with the new law and avoid exclusive reliance on the current DOL website.   Employers are also encouraged to amend their certification forms to comply with the new law.  Finally, employers should inform their employees of their expanded rights by taking steps such as amending their postings, updating their handbooks and/or revising their written policies.

In addition to biological and adopted children, the FMLA’s definition of “son or daughter” includes foster children, stepchildren, a legal ward, or a child of a person standing “in loco parentis.”  The DOL’s recent guidance focused on the definition of in loco parentis, which has been understood to mean “in place of a parent.” 

Federal regulations define in loco parentis as those with day-to-day responsibilities to care for and financially support a child.  The DOL’s June 22 opinion, however, clarified that the definition is not intended to require that an employee standing in loco parentis both provide day-to-day care and financial support to the child.  Either factor, standing alone, can be enough to qualify that employee for leave if the employee intends to assume parental responsibilities for the child.

This clarification potentially entitles aunts, uncles, grandparents, or same-sex partners who are helping raise their partners’ adopted children, to 12 weeks of unpaid leave to care for a child who is newly adopted, born, or suffering from a serious health condition. 

While employers are entitled to request that an employee provide written documentation verifying an in loco parentis relationship when applying for FMLA leave, employers are cautioned that the DOL’s guidance requires only “a simple statement asserting that the requisite family relationship exists.”  The DOL fails, however, to give any further guidance regarding the requirements for that “simple statement.”  Employers are encouraged to contact legal counsel should any questions arise regarding an employee’s entitlement to FMLA leave based on in loco parentis standing.

This is less clear with respect to the FMLA.  Some courts have allowed juries to decide whether the plaintiff is entitled to front pay and how much should be awarded.  The Ninth Circuit Court of Appeals recently wrestled with this issue in Traxler v. Multnomah County, 2010 WL 669251 (9th Cir. February 26, 2010).  In Traxler, a county employee was discharged after he took medical leave.  He filed a lawsuit challenging the decision under the FMLA.  At the trial, the jury returned a verdict in the plaintiff’s favor that included a front pay award of $1,551,000.

The County sought a new trial and to alter or amend the judgment, arguing that it was error to submit the issue of front pay to the jury.  The district court agreed, vacated the jury’s front pay award, and instead awarded the plaintiff $267,000 in front pay.  The district court also ruled in the alternative that, even if it was not improper for the jury to calculate FMLA front pay, the award was excessive.  The plaintiff appealed this ruling.

In affirming the district court’s ruling that it was an error to submit front pay considerations to the jury, the Ninth Circuit held that, under the FMLA, front pay is an equitable remedy that must be determined by the court and not by the jury, as to both the availability of the remedy and the amount of any award.  The Court noted that its view was consistent with the Fourth, Fifth, and Tenth Circuits.  Because front pay is not among the enumerated damages under the statute, the Court concluded that “the court’s power under the FMLA to award front pay, as an alternative to reinstatement, is derived solely from the statutory provision permitting the court to award ‘such equitable relief as may be appropriate.’”  Because front pay is an equitable remedy, the Court reasoned, “it makes little sense to say that the availability of front pay is a judicial determination and the amount a jury determination.”

This decision is significant for employers because, generally speaking, juries can be extremely unpredictable with respect to remedies.  Courts generally have much more experience not only with issues of liability but also with remedies.  Placing the decision whether to award front pay (and how much) in the hands of a jury could dramatically alter the risk scenario in the event of a trial.  Although judges are not always predictable, at least they have much more experience not only with issues of liability but also with remedies, and usually are less likely than juries to be influenced by appeals to emotion.

Thus, at least in the Fourth, Fifth, Ninth, and Tenth Circuits, and “as a proxy for reinstatement,” the award of front pay in FMLA cases, including the amount, rests solely with the judge and not the jury.

The first new provision expands the right to “exigency” leave to family members of active duty service members.  Under last year’s amendments, only family members of reserve service members were eligible for such leave.  The FMLA now allows an employee to take up to 12 weeks of leave per year to deal with specified issues related to overseas military service by a family member (defined as a spouse, son, daughter, or parent).  Examples include arranging child care, making financial and legal arrangements, and counseling.  

The second new provision expands the right of employees to take up to 26 weeks of leave per year to care for a family member with a serious injury or illness incurred as a result of military service.  Under last year’s amendments, only employees who had a family member (defined as a spouse, son, daughter, parent, or next of kin) in active duty could take such leave.  The FMLA now allows family members of veterans to take such leave, as long as the veteran was in active service during the five years previous to the date on which he or she needs care.

The new leave entitlements became effective on October 28, 2009.  Employers should take immediate steps to update their leave policies, forms, and procedures to ensure compliance.  We can help.