Court Enjoins DOL's Enforcement of FMLA Rule Redefining Spouse | Practical Law

Court Enjoins DOL's Enforcement of FMLA Rule Redefining Spouse | Practical Law

In Texas, et al. v. United States, a federal judge in the Northern District of Texas granted a preliminary injunction sought by the states of Texas, Nebraska, Arkansas and Louisiana ordering a stay of the application of the US Department of Labor's (DOL) recently promulgated Final Rule redefining the term "spouse" under the Family and Medical Leave Act (FMLA). The Final Rule, which was set to take effect on March 27, 2015, redefined spouse to include legally married same-sex couples regardless of where they live within the ambit of FMLA protection. Same-sex marriage is not recognized in the four states that sought the preliminary injunction. The court held that the four states demonstrated a likelihood of success on the merits and met the other requirements for injunctive relief. It remains unclear whether and to what extent this decision applies to private employers or any employers beyond the immediate jurisdiction of the court, or how the DOL will respond to this decision.

Court Enjoins DOL's Enforcement of FMLA Rule Redefining Spouse

Practical Law Legal Update 4-606-5762 (Approx. 8 pages)

Court Enjoins DOL's Enforcement of FMLA Rule Redefining Spouse

by Practical Law Labor & Employment
Published on 30 Mar 2015 • Texas
In Texas, et al. v. United States, a federal judge in the Northern District of Texas granted a preliminary injunction sought by the states of Texas, Nebraska, Arkansas and Louisiana ordering a stay of the application of the US Department of Labor's (DOL) recently promulgated Final Rule redefining the term "spouse" under the Family and Medical Leave Act (FMLA). The Final Rule, which was set to take effect on March 27, 2015, redefined spouse to include legally married same-sex couples regardless of where they live within the ambit of FMLA protection. Same-sex marriage is not recognized in the four states that sought the preliminary injunction. The court held that the four states demonstrated a likelihood of success on the merits and met the other requirements for injunctive relief. It remains unclear whether and to what extent this decision applies to private employers or any employers beyond the immediate jurisdiction of the court, or how the DOL will respond to this decision.
On March 26, 2015, in Texas, et al. v. United States, a federal judge in the Northern District of Texas granted a preliminary injunction sought by the states of Texas, Nebraska, Arkansas and Louisiana ordering a stay of the application of the DOL's recently promulgated Final Rule redefining the term "spouse" under the FMLA. The Final Rule, which was set to take effect on March 27, 2015, redefined spouse to include legally married same-sex couples regardless of where they live within the ambit of FMLA protection. Same-sex marriage is not recognized in the four states that sought the preliminary injunction. The court held that the four states demonstrated a likelihood of success on the merits and met the other requirements for injunctive relief. (No. 7:15-CV-00056-O, (Mar. 26, 2015).)

Background

On February 25, 2015, the DOL published a final rule redefining the term "spouse" under the FMLA in light of the Supreme Court's 2013 decision striking down as unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA) (United States v. Windsor, 133 S. Ct. 2675 (2013)). The final rule, which was set to take effect on March 27, 2015, revises the definition of spouse under the FMLA to include all legally married couples determined by the laws of the state where the marriage took place so that employees in legal same-sex and common law marriages can be eligible to take FMLA leave to care for their spouse or family member, regardless of where the employees reside. Previously, the definition of "spouse" was based on a state of residence rule so that legally married same-sex couples who resided in a state that did not recognize same-sex marriage were not treated as spouses under the FMLA. Under the new rule, employers in states that do not recognize same-sex marriage would have had to provide FMLA benefits to same-sex spouses to the same extent as other legally married couples. For more information on the final rule, see DOL Issues Final Rule Redefining Spouse under the FMLA.
Texas and three other states (Louisiana, Arkansas and Nebraska) that do not recognize same-sex marriages and define marriage as solely between a man and a woman sought a preliminary injunction in US District Court for the Northern District of Texas to enjoin the DOL's enforcement of the final rule. The states argued that the DOL exceeded its delegated authority by promulgating the rule, and that it violated state law as well as Section 2 of DOMA, known as the Full Faith and Credit Statute, which was not addressed in Windsor and remains intact (28 U.S.C. § 1738C). The Full Faith and Credit Statute provides that states are not required to recognize legal same-sex marriages from other states.

Outcome

The district court granted the preliminary injunction sought by Texas and the three other states barring the DOL from enforcing the final rule redefining "spouse" under the FMLA. The court rejected the argument that the plaintiff states lacked standing, finding that the plaintiffs could point to a concrete and imminent injury-in-fact, including having to violate their own state laws, and having to change their current FMLA policies and honor leave requests in accordance with the final rule (Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)).
The district court then held that Texas had shown a substantial likelihood of success on the merits, finding that:
  • The final rule's definition of "spouse" conflicted with the FMLA's statutory definition of "spouse" because:
    • the statute's original 1993 meaning was not intended to include same-sex couples, given that same-sex marriage was not recognized in any state at that time;
    • the Full Faith and Credit Statute in DOMA reflected Congress's intent to define marriage as only between a man and a woman; and
    • Windsor and the Full Faith and Credit Statute both indicate that Congress did not delegate to the DOL the power to force so-called traditional marriage states to provide benefits in accordance with the marriage laws of same-sex marriage states, and therefore the DOL exceeded its authority by promulgating the final rule.
  • The final rule violates DOMA's Full Faith and Credit Statute because the rule requires states to implement a federal regulation that confers same-sex marriage rights derived from other states' laws.
  • The final rule improperly preempted state law because Congress did not intend to preempt state marriage laws with its generic FMLA definition of "spouse."
The court found that the plaintiff states had satisfied the remainder of the four-part test for granting a preliminary injunction, establishing that:
  • The plaintiff states would suffer irreparable harm if the preliminary injunction were not granted.
  • The balance of hardships weighed in the plaintiff states' favor because the states' interests in not being required to violate their own laws through federal rulemaking outweighed the potential harm of having FMLA benefits delayed.
  • The public interest in preserving the rule of law and enforcing validly enacted states' laws warranted granting the preliminary injunction.
Although the plaintiff states apparently brought the action on behalf of all state public and private employers within their states, the district court opinion did not indicate to which employers the injunction applied.

Practical Implications

The scope and ultimate impact of the injunction in Texas, et al. v. United States remains uncertain. At a minimum, the court's ruling appears to temporarily stay application of the DOL's final rule with respect to state employers in the Northern District of Texas. The injunction is granted on behalf of all the plaintiff states, and several practitioners have suggested that the decision applies to employers throughout Texas, Arkansas, Nebraska and Louisiana. However, the decision is silent about whether the injunction covers private employers at all, and the court focuses on the harm to the plaintiff states in their capacity as employers. In addition, further proceedings may be required to enforce the injunction beyond the immediate jurisdiction of the Northern District of Texas.
The DOL has not indicated how it will respond to enforcement of the final rule in locations beyond the jurisdiction of this lawsuit. A recent posting on the DOL website about the decision provides no clear answers.
The DOL most likely will appeal Judge O'Connor's decision to the Court of Appeals for the Fifth Circuit. In addition, and as noted in the opinion, the Supreme Court is due to address the constitutionality of same-sex marriage in the coming term, and will presumably provide guidance to the circuit and district courts. The rulings in the same-sex marriage cases may clarify aspects of the Supreme Court's 2013 Windsor opinion, and ultimately may inform the validity and enforcement of the DOL's FMLA final rule.
In the interim, the best approach for employers (especially those located in states other than Texas, Arkansas, Nebraska and Louisiana) is to offer FMLA benefits to employees who qualify for leave under the DOL's new definition of spouse, as has been required since March 27, 2015. Multi-state employers are unlikely to modify their policies that comply with the new definition of spouse in response to this ruling, even as applied to employees located in the plaintiff states. However, employers should follow the developments in this and the related Supreme Court cases for further guidance.

Update

On March 31, 2015, in court papers requesting a hearing on the preliminary injunction, the DOL clarified its understanding of the scope of the injunction and the extent to which it would comply. Namely, the DOL represented to the court that:
  • It would not take any action to enforce the provisions of the new regulations to the extent they redefined spouse based on place of celebration rather than place of residence against:
    • the plaintiff states of Texas, Arkansas, Louisiana or Nebraska; or
    • officers, agencies or employees of the plaintiff states acting in their official capacities.
  • It did not understand the court’s order to preclude enforcement in any location of the DOL's former definition of spouse based on place of residence.
  • It did not understand the court’s order to apply to persons other than the named plaintiff states, and therefore understood it to apply only to the state governments of the those four states.
On April 10, 2015, according to a press release issued by the Texas Attorney General, the US District Court for the Northern District of Texas declined the DOL's request to dissolve the preliminary injunction.
On June 26, 2015, the US Supreme Court issued Obergefell v. Hodges, in which it held that same-sex couples may exercise the right to marry in all states and that states may not refuse to recognize a lawful same-sex marriage performed in another state based on the marriage's same-sex character (Nos. 14-556, 14-574, 14-562 and 14-571, (June 26, 2015)). In light of Obergefell, the Texas, et al. v. United States injunction was dissolved.