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SHRM Newsletter: Federal Appeals Court Invalidates Utah Same Sex Marriage Ban
Posted on Jul. 14, 2014

This is Utah SHRM Legal-mail no. 2014-12 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).







FEDERAL APPEALS COURT INVALIDATES UTAH SAME SEX MARRIAGE BAN: The Tenth Circuit Court of Appeals has agreed with the Utah trial court that the State’s ban on same sex marriage is unconstitutional.  In a recent decision, the appeals court concluded that the ban, found in Utah’s State Constitution, violated the United States Constitution’s guarantee of Equal Protection for all persons. The appeals court stayed the effect of its decision and Utah has indicated it will appeal the case to the United States Supreme Court.  Until the stay is lifted or the Supreme Court rules on the dispute, the ban on same sex marriage remains intact.

WHITE HOUSE SIGNALS CHANGE TO FMLA DEFINITION OF SPOUSE: The White House has indicated that it will implement rulemaking through the Department of Labor (DOL) to expand the definition of spouse under the Family and Medical Leave Act (FMLA) to more fully- include same sex spouses. FMLA regulations currently 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). 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. The proposed new definition likely will more broadly focus on whether same sex marriage is legal where the marriage was performed: “Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.” Here is a link to the DOL press release on this point: and a link to the proposed new rule:

NLRB RULINGS MAY BE IN DOUBT AFTER SUPREME COURT RULING: The United States Supreme Court has cast into doubt some rulings of the National Labor Relations Board (NLRB) after concluding that some of the past NLRB board members were not appropriately appointed/confirmed. These members were “recess” appointments made during times Congress was not actively in session (but arguably was not in recess either) and were not confirmed by the Senate. The decisions cast in doubt could include a number of opinions dealing with non-union workplaces, e.g. employee social media use, employer investigations and handbooks. All these rulings will be reviewed again. However, the NLRB now has in place a properly-appointed and confirmed board with a majority favoring the positions of President Obama. As a result, commentators expect that the rulings will most likely come out the same way with the new board as they did with the old one. 

PREGNANCY ACCOMMODATIONS REQUIRED? The United States Supreme Court will consider whether federal laws prohibiting pregnancy-based discrimination also require that employers provide job accommodations to pregnant employees. The case involves a driver for a parcel service who had to lift packages weighing up to 70 pounds. She became pregnant and provided a medical note recommending that she not lift more than 20 pounds during her pregnancy. The employee wanted to return to her regular job or a light-duty position, but her request was denied due to her limitations. She sued, alleging the company violated the law by not giving her the same accommodations it provided to non-pregnant employees with physical disabilities and similar restrictions. Lower courts have agreed with the employer and now the Supreme Court will decide the issue. 

NEWS BRIEFS: The United States Supreme Court has ruled that certain privately-held corporations cannot be bound to the mandate in the Affordable Care Act that they provide contraceptive health care coverage to employees if that mandate violates the religious convictions of the owners of the company. A New Jersey healthcare provider will pay over $1 million to resolve claims before the EEOC that it committed disability discrimination. According to the EEOC, since the employer’s leave policy merely tracked the requirements of the federal Family Medical Leave Act (FMLA), employee leaves were limited to a maximum of 12 weeks. The employer’s policy meant that employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks, all without additional consideration of whether the Americans With Disabilities Act (ADA) required some additional accommodation, including additional leave.

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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