U.S. Supreme Court Holds No Self-Care FMLA Claims Against State

I know it's been a while. I'm on strike waiting for Brinker.  In the meantime, though, the U.S. Supreme Court held that the Family and Medical Leave Act's "self-care" provision is not applicable to the states (and their agencies) in federal courts because of the Eleventh Amendment to the Constitution.

While interesting to constitutional law scholars and state governments, the Court's decision in Coleman v. Court of Appeals of Maryland (opinion here) does not affect FMLA claims against private employers at all.  It also does not disturb the Court's prior decision in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), in which the Court held that FMLA claims based on leave to care for family members or baby bonding are authorized against the states.

The difference between this case and Hibbs is that the Fourteenth Amendment to the U.S. Constitution permits Congress to implement its guarantee of due process and equal protection via "appropriate legislation."  In Hibbs, the Court decided that baby-bonding and family care leave are "appropriate" because Congress was concerned with sex discrimination, and that there was evidence that states were engaging in sex discrimination against parents and women caring for family members.  The "self-care" provision, though, is applicable to both sexes and is intended to remedy the costs of losing a job when one is ill.  That subject is not appropriate for legislation under the Fourteenth Amendment. As the plurality opinion put it:

what the family-care provisions have to support them, the self-care provision lacks, namely evidence of a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations.

There, you're all constitutional lawyers now.  The decision was fractured, with only 4 justices signing the lead opinion (Kennedy, Thomas, Roberts and Alito).  Four justices dissented, joining an opinion written by Justice Ginsburg (Kagan, Sotomayor, and Breyer).  Justice Scalia did not join the opinion, but agreed that the FMLA's self-care section does not apply to the states.  Justice Scalia's concern is that the analysis the Court uses to decide if the Eleventh Amendment bars a lawsuit against a state is mushy and should be revised.

New U.S. Supreme Court Opinion May Signal End of California Courts' Arbitration Jurisprudence

In West Virginia, the state Supreme Court held that, as a matter of "public policy," pre-dispute arbitration agreements covering claims for personal injury arising from nursing home patronage are void.  In a terse, unsigned opinion, the U.S. Supreme Court reversed the state high court.

West Virginia's prohibition against predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes is a cate- gorical rule prohibiting arbitration of a particular type of claim, and that rule is contrary to the terms and coverage of the FAA.

 

The West Virginia Supreme Court alternatively held that the arbitration agreement at issue was "unconscionable,"  a state law defense that is a valid exception to the Federal Arbitration Act. 
The U.S. Supreme Court also vacated that alternative holding:

in its discussion of the alternative holding, the state court found the arbitration clauses unconscionable in part because a predispute arbitration agreement that applies to claims of personal injury or wrongful death against nursing homes "clearly violates public policy." Id., at 91a.

On remand, the West Virginia court must consider whether, absent that general public policy, the arbitration clauses in Brown's case and Taylor's case are unenforce-able under state common law principles that are not specific to arbitration and pre-empted by the FAA

Here's why you may care - In California, the Supreme Court and the courts of appeal have fashioned special rules for enforcing arbitration of certain kinds of employment claims (arising from statute or public policy).  Rather than banning agreements to arbitrate outright (as in the West Virginia case), the California courts have come up with a gauntlet of impediments, making it easy to hold arbitration agreements "unconscionable" based on criteria that would not apply to any other kind of contract.  Thus, the California courts apply different rules to agreements to arbitrate certain kinds of claims, but not others. 

Given the Supreme Court's recent case law, these state law rules may not be long for this world. Of course, Congress could amend the Federal Arbitration Act or the Supreme Court's membership might change, in which case all bets are off.

This case is Marmet Healthcare Center v. Brown and the opinion is here.

US DOL Proposing New FMLA Regulations

The U.S. Department of Labor has issued a notice of proposed regulations regarding a couple of FMLA issues.  The draft regulations implement recent modifications to the FMLA contained in the 2010 National Defense Authorization Act.

There will be changes to military servicemember leave. There also will be new rules for certain airline employees, who would otherwise be ineligible for leave.  According to the DOL, the proposed
regulations cover the following:

• the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

The DOL has created a web page containing links to the proposal, fact sheets, and more here.

Employers may comment on the draft regulations before April 16, 2012.  For details on how to comment, see the Notice of Proposed Rulemaking here.  Instructions regarding comments are at the beginning of this document.

DGV

New "Hiring Goal" for Federal Contractors

The OFCCP, the arm of the US Department of Labor, handles affirmative action obligations for federal contractors. For employers subject to OFCCP jurisdiction - The agency has proposed new regulations that would establish a "goal" for employers to employ individuals with disabilities.  The goal is 7%.  You can find the proposed rule and other information from the DOL here.

Jason Wu for Target

Lovelies,

After today, I can say I've ran and pushed past other girls on a Sunday morning at 8:00 AM, just to get my hands on more clothing. The whole experience was actually pretty entertaining, especially because I found myself waiting in line outside my local Target, freezing but excited. The only downer was how closely my actions resembled Rebecca Bloomwood's from the movie Confessions of a Shopaholic. Regardless, I walked out of the store, purchases in tow, impressed with my findings. Just WHAT was all of the commotion around? Jason Wu's collaboration with Target, of course. By 8:03, the shelves were practically cleared. Was the commotion over the collection worth it? In some ways yes, and other ways no.

The collection had a few strong pieces, such as some of the structured blouses, and the accessories were right on the mark for spring. One of my findings was a polka dot blouse with a bow collar and little pin-tucked sleeves. It was definitely a steal for the price ($35). However, the collection seemed almost incomplete. Most of the dresses didn't have liners attached to the underside, and the sizing for most of the pieces was completely off. I found myself swimming in several pieces that were marked as X-Small.
I wouldn't say that the collection was a complete flop, since there were some standout pieces that showcased his craftsmanship. I would say, however, that Wu could have probably spent more time on the collection. With some fine tweaks, he could have hit it out of the park.

XOXO,

Em

State High Court Orders Review of Case to Clarify Legality of Rounding Timecard Entries - California Chamber of Commerce

The California Supreme Court directed the Fourth District Court of Appeal to review a case involving whether "rounding" time clock entries is lawful under California law. Federal law permits rounding, and the California Division of Labor Standards Enforcement has permitted as a matter of policy, so long as the "rounding" evens out or favors the employee. A trial court recently ruled that a class action involving rounding could proceed against an employer, See's Candies. See's sought a writ in the Court of Appeal, which summarily denied the Petition. The Supreme Court, however, unanimously voted to Order the Court of Appeal to hear See's petition on the merits.

The petition for review is granted. The matter is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its order denying mandate and to issue an order directing respondent Superior Court to show cause why the relief sought in the petition should not be granted. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Corrigan, Liu, JJ.

This does not mean See's will win. The Court of Appeal may decide in favor of the employee. But at least we'll have our first appellate decision on the issue of rounding.

I will let you know when the Court of Appeal decides the case. If you want to follow along the docket is here.

Thanks to the CalChamber for letting us know about this.

DGV

Reflection

Lovelies,

Oxfords, Macy's.

Madewell Sweater, Gap Jeans, Talbots Necklace.

Oroton Purse.

First of all, photo credits to my lovely best friend Rachel Baek. She doesn't have a blog I can link you to, but honestly, she needs one. (Cue for Rachel to make a blogger...) :)

Even though it's only January, we've barely had any rainy days. Because of this, I'm already looking forward to Spring, and filling my closet with pastels. I just got this sweater from Madewell in the mail yesterday, and I refuse to take it off. (Unfortunately, I've become hooked on TWO stores in the past week...). It's made a soft mohair that's SO comfortable. I also wore my trusty Gap jeans, Oroton purse and Talbots necklace. I bought the oxfords over a year ago at Macy's, and today was my first time wearing them!

Finals just finished up this past week, and I couldn't be happier.

XOXO,

Em