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SHRM Newsletter- DOL Issues Guidance on FMLA and Same Sex Spouses
Posted on Aug. 20, 2013

This is Utah SHRM Legal-mail no. 2013-15 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).







DOL ISSUES GUIDANCE ON FMLA AND SAME SEX SPOUSES: The United States Department of Labor (DOL) recently issued a guidance on how the Family and Medical Leave Act (FMLA) will apply to same sex spouses of covered employees. The guidance expressly confirms that same sex spouses of such employees will fit within the definition of “spouse” under the law for those employees who live in Washington D.C or one of the 13 states that recognize same sex marriage. These states are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. The new DOL guidance did not address the issue of whether same sex spouses of private business employees who live in states that do not recognize same sex marriage are covered spouses under the FMLA, but right now, such persons probably are not included within the FMLA definition. The FMLA statutory language defines spouse as “a husband or wife, as the case may be.” DOL’s FMLA regulations elaborate and 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.” Thus, DOL could act to change its regulations and define a spouse more broadly as anyone validly married under any state law, but that will take some time (and paperwork) to accomplish. The federal Office of Personnel Management also recently announced that the federal government will consider all same sex spouses of federal employees to be FMLA spouses regardless of where the federal employees live. The Department of Defense is expected to adopt the same approach for military personnel.

EMPLOYMENT SETTLEMENT/SEVERANCE AGREEMENTS AND TAXES: From time-to-time an employer will settle a dispute with an employee (or former employee) or pay severance to resolve a claim or potential claim. Such agreements are contracts and have legal consequences. Various laws require that some of them be done in certain ways. For example, a settlement agreement obtaining waiver of an age discrimination claim from an employee aged 40 or older must meet various procedural and substantive requirements or it will not be enforceable. Another common issue is whether and how the amounts paid are taxable. As a general rule, payments made to resolve employment claims will create tax liability for the employee, and possibly for the employer if the employee does not pay taxes and the employer did not withhold. The bottom line? Be careful entering into such agreements and be sure you work with competent legal counsel and tax counsel to create an enforceable agreement.

EMPLOYEE HANDBOOK PROVISIONS TO AVOID OR USE WITH CAUTION: I recently read an interesting article with a nice summary of handbook provisions to avoid or use with caution. The article listed clauses: (1) suggesting employment is permanent or more guaranteed after a probationary period; (2) limiting employee rights to act in concert (e.g. prohibiting employee discussions about working conditions or wages); (3) outlining dress codes; (4) regulating off duty conduct; and (5) addressing hiring of spouses and nepotism (because some states prohibit discrimination based on things like marital status. Employers should also remember that handbooks should have clean and clear contract disclaimers and at-will statements and should include policies prohibiting discrimination, harassment and retaliation. Handbooks also should consider the impact of employing persons in multiple states because one state may have different or more thorough laws than the laws of another state. As with settlement agreements (discussed above), employee handbooks have legal consequences. Done right, the consequences can be helpful to an employer in dealing with HR law.

MORE AND LESS FROM OSHA IN 2013-14: According to an article recently published by national SHRM analyzing the agency’s stated goals for the future, the Occupational Safety and Health Administration (OSHA) will be doing more health inspections, fewer safety inspections and fewer inspections overall. Regarding health inspections, the SHRM articles notes that Facilities where emerging chemical and health issues are likely to arise are more likely to be inspected. OSHA plans to conduct 450 more health inspections than in FY 2013.” As for safety inspections, “The FY 2014 goal is to conduct 2,200 fewer safety inspections than in this fiscal year.” Finally, SHRM notes that “OSHA is going to focus more on the quality of inspections than the quantity. Investigators plan to visit 1,711 fewer worksites than the 40,961 they inspected in FY 2012. OSHA estimates it will conduct about 41,000 inspections in FY 2013.” National SHRM members can read the full article here:

MORE ON HR LAW AT UTAH SHRM CROSSROADS CONFERENCE: You can get more information about interesting HR law (and lots of other) topics at the Utah Crossroads Conference set for September 17 and 18, 2013. Breakout sessions will include “Defensible Workplace Investigations,” “The Dangerous and Expanding World of Discrimination and Harassment,” “Legal and Practical Considerations for Managing a Remote Workforce,” “Watch your Back(ground),” and “You're Not Unionized but the NLRB Can Still Get You.” For more information, visit

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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