Category: Legal Developments

On January 31, 2012, the Department of Labor (DOL) released proposed changes to the agency’s Family and Medical Leave Act (FMLA) regulations, which were published in the Federal Register on February 15.  This Notice of Proposed Rulemaking (NPRM), a necessary precursor to any regulatory change, seeks comments from interested parties by April 16.  Comments may be submitted, identified by Regulatory Information Number (RIN) 1235–AA03, by...

The FMLA provides that an employee may take leave to care for a parent, spouse, son or daughter who has a serious health condition.  29 U.S.C. § 2612(a)(1)(c).  An employee can take leave to care for a parent or spouse of any age who, because of a serious mental or physical condition, is in a hospital or other health care facility, or who is at home but unable to care for his or her own basic hygienic or nutritional needs or safety.  So, no...

I wrote about this last year, because in 2010, the Equal Employment Opportunity Commission received nearly 100,000 new charges of workplace discrimination, the highest figure ever.  In the Baltimore Region, there were approximately 3,300 pending charges and about 13 investigators to handle them.   Well, 2011 was another banner year for charges being filed, and particularly in the Baltimore area.  The back log still exists and there is no quick...

The Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff, was enacted in 2008 to prevent discrimination on the basis of genetic information in employment and health insurance.  Title I of the Act focuses on issues in health insurance, and is administered by several federal Departments, while Title II prohibits employers from using genetic information in employment decision-making and is administered by the Equal Employment...

In Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), the Fourth Circuit joined five other appellate courts in holding that the self-care provision of the Family and Medical Leave Act, does not apply to the states because Congress did not properly abrogate the states’ Eleventh Amendment immunity.  Despite the lack of any apparent Circuit split on the issue, the Supreme Court granted Coleman’s petition for a writ of certiorari to...

Over the past year, the “card check” legislation ironically known as the Employee Free Choice Act (“EFCA”) has garnered a lot of attention.  With large Democratic majorities in both chambers of Congress and a liberal Democrat in the White House, it seemed only a matter of time until organized labor received a payoff for its nearly $10 million dollar investment in President Obama and EFCA became law. Now, as EFCA languishes in the Senate...

Mixed-motive theory was legislated into Title VII with the 1991 Civil Rights Act.  The theory provides that an employee may prevail in a case in which she demonstrates that illegal considerations were “a motivating factor” in the adverse employment decision, even where the employer would have made the same decision absent the illegal considerations. There is no similar provision under the FMLA (or any other anti-discrimination law for that...

As employers try to navigate the economic downturn, companies are increasingly turning to temporary furloughs to save labor costs.  When furloughing employees, employers require staff to use accrued leave or take unpaid time off.  However, if not done properly, this practice could result in employers converting otherwise exempt employees into non-exempt staff who become entitled to overtime under the Fair Labor Standards Act and its state law...

On October 1, 2008, Maryland’s Flexible Leave Act (“MFLA”) went into effect.  The law, which applies to employers with 15 or more employees, requires businesses that provide employees with any form of paid leave to permit employees to use such leave for the illness of an immediate family member. The original version of the MFLA left many questions unanswered. For example, neither "illness" nor "immediate family member" was defined in the law....