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SHRM Newsletter- Surpreme Court Addresses Employment Law Issues
Posted on Jul. 19, 2013

This is Utah SHRM Legal-mail no. 2013-13 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 








SUPREME COURT ADDRESSES EMPLOYMENT LAW ISSUES: The Supreme Court of the United States (SCOTUS) recently concluded its 2012-13 term. The Court issued a number of rulings important for employers. I highlighted one of them in the last update, regarding the same-sex marriage rulings. The Court also concluded that plaintiffs suing their employers for retaliation must meet a high “but for” causation standard, i.e. they must prove that but for the plaintiff’s engagement in protected conduct (e.g. making a claim of discrimination), the adverse action at issue (e.g. job termination or demotion) would not have occurred. SCOTUS also defined the meaning of a supervisor, for purposes of such employment law issues as whether or not discrimination or harassment was committed by a supervisor. There are different levels of employer liability for supervisor harassment as compared to co-worker harassment. The Court concluded that a supervisor is someone who has been empowered “to take tangible employment actions” against an employee, such as hiring, firing, failing to promote, reassignment or other actions causing a significant change in the employment relationship.

FMLA AFTER THE SAME SEX RULINGS: The SCOTUS rulings on same sex marriage will have a practical impact on employer implementation of laws like the Family and Medical Leave Act (FMLA). Among other things, FMLA allows an employee to take up to 12 weeks of leave to care for a spouse with a serious health condition. What does the same sex ruling mean for this law? FMLA regulations define “spouse” as “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 in States where it is recognized.” (emphasis added). As one commentator notes, “in the case of same-sex marriages, the FMLA focuses not on whether the marriage is lawful in the state where the employer is located, where the employee works, or where the marriage occurred, but whether it is recognized in the state in which the employee resides. Same-sex marriages are lawful in the District of Columbia and California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington.” The commentator also notes, with this chart, how the variations in state, employer location and employee residence affect the applicability of “spouse” under the FMLA (key: “SSM” refers to the states in which same-sex couples are permitted to marry or recognize same-sex marriage; “Non-SSM” refers to the other states):

Employer’s State

State of Employee’s Residence

Is Same-sex Spouse a “Spouse” for FMLA Purposes?














Thus, a Utah-based employer would have to recognize, for FMLA purposes, the same sex spouse of an employee who resided in Massachusetts. For more details, see:

COURT STRIKES DOL 2010 LETTER ON LOAN OFFICER CLASSIFICATIONS: A federal appeals court has invalidated a 2010 United States Department of Labor (DOL) opinion letter that required financial institutions to classify their mortgage loan officers (MLOs) as nonexempt under the Fair Labor Standards Act (FLSA). The 2010 letter had reversed previous DOL statements that MLOs are exempt employees. The federal appeals court struck down the DOL’s procedure for concluding that MLOs were nonexempt, but it did not issue an opinion on the substantive merits of the issue. Thus, DOL can still reach the same conclusion if it now follows the right procedure of announcing a proposed rule, getting comment on the same and then finalizing the rule. DOL also may appeal the ruling. Moreover, Plaintiff’s lawyers can still sue employers if they classify MLOs as exempt, and the 2010 DOL letter, while invalidated, still paints a path for such lawsuits. Finally, in response to the 2010 letter, many financial institutions re-classified their MLOs as nonexempt. There could be a lot of disruption changing them to exempt now when it is not absolutely clear that such a classification will stick. All this suggests that financial institutions should probably leave their MLOs classified as nonexempt for the time being and see how all this shakes out in the next few weeks and months.

AFFORDABLE CARE ACT PROVISION DELAYED: The Obama Administration recently announced that it would delay by one year the implementation of the employer coverage mandate included in the Affordable Care Act (ACA). The mandate requires employers with 50 or more employees to either provide health care coverage to employees or pay a penalty for failing to do so. The delay was attributed to a desire to give employers more time to understand and comply with the new law’s requirements. The new implementation deadline is January of 2015.

NLRB UPDATES: A federal appeals court in DC has ruled that the National Labor Relations Board (NLRB) exceeded its authority in 2011 when it issued an order requiring employers to post notices telling employees about their various rights under the National Labor Relations Act (NLRA). NLRB membership was at the heart of the recent battle in the United States Senate over the use of the filibuster to delay confirmation of executive appointments. In exchange for not changing the filibuster rules, Senate Republicans agreed to allow votes on a number of President Obama’s nominations to various federal offices, including two positions to the NLRB.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012