Friday, February 29th, 2008


The 2008 National Defense Authorization Act has changed the Family and Medical Leave Act (FMLA) for families of military service members. There are three major changes:

  • An employee may take up to 12 weeks of FMLA leave because of any “qualifying exigency” the employee faces because a spouse, child, or parent has been called to active duty in support of a war or similar combat operation. At this point, no one really knows what a “qualifying exigency” is, but the Department of Labor is expected to issue clarifying regulations. The regulations are expected to broadly define the term so as to allow an employee time off to deal with any significant life disruption caused by the activation of a family member with service obligations.
  • An employee may now take up to 26 weeks of FMLA leave (up from the current 12 weeks per year maximum) to care for a service member who incurs a “serious injury or illness” in the line of active duty if the employee is the “primary caregiver” for the service member. A “serious illness or injury” is different from the FMLA’s definition of a “serious health condition.” A “serious illness or injury” is a medical condition incurred in the line of duty that renders the service member unfit to perform military duties. Generally speaking, an employee who is the primary caregiver to a service member injured while on duty may take up to 26 weeks of FMLA leave per year.
  • An employee may take FMLA leave to care for an injured service member if the employee is the “next of kin” to the service member. Previously, employees could take leave to care for an injured or sick spouse, child, or parent. This new category (“next of kin”) is defined as the nearest blood relative to the service member. For service members who have no other family, an employee who is “next of kin” can take up to 26 weeks of FMLA leave to care for an ill or injured service member.

This law reflects our nation’s desire to further support the men and women in our Armed Forces who are fighting around the world to protect our freedoms. In accordance with the universal law of unintended consequences, malingerers will undoubtedly use this new law, which has a beneficial purpose, to their advantage.

Stay tuned for clarifying regulations from the Department of Labor.


Alex E. Farrer is a former trial judge from Florida who has become the star of the television show “Judge Alex.” The show features litigants who have agreed to submit their disputes to binding arbitration before Judge Alex.

Ironically, Judge Alex signed an agreement with a talent agent that required all disputes arising under the agreement to be referred to binding arbitration. Judge Alex and his agent had a dispute over fees, and the agent invoked the arbitration provision of their agreement. Judge Alex sought to avoid arbitration based on a California law (the “Talent Agencies Act”) that gave the California Labor Commissioner the authority to decide all disputes between entertainers and their agents.

The California Courts upheld the California statute, but the U.S. Supreme Court reversed and handed Judge Alex his first defeat.

Irony aside, the case is important because it stands for the proposition that the Federal Arbitration Act trumps state laws that attempt to limit contracting parties’ rights to agree to submit their disputes to binding arbitration. For those companies that use arbitration agreements in their employment contracts, this decision provides reassurance that states have limited ability to interfere with or restrict those arbitration agreements.

AROUND THE CIRCUITS – Three Court Decisions With Practical Lessons

Unauthorized Overtime Must Be Paid

Sometimes we need to be reminded of the obvious. Gotham Registry, Inc. in Manhattan provides nurses to New York hospitals. The nurses are told, in writing, that they cannot accept any shift assignments that require them to work more than 40 hours in a week. Yet, Gotham knew that its clients (the hospitals) sometimes pressed the nurses to extend their shifts because of medical emergencies or unscheduled absences. The nurses effectively “volunteered” for this extra duty, probably out of a sense of professionalism.

The Federal Appeals Court in New York held that Gotham was required to pay the overtime, even when the nurses were violating company policy by working beyond their authorized hours.

While employers can discipline employees who work overtime without permission or contrary to established rules, the overtime must be paid.

Accommodating Deaf Employees

Federal Express was recently ordered to pay $100,000 in punitive damages for its failure to accommodate a deaf packager handler’s request for a sign language interpreter at safety meetings and training sessions. Actually, the deaf employee had requested that an interpreter be present OR that the safety and training materials be given to him in written form. The Federal Appeals Court in Richmond found that both proposals were reasonable accommodations under the ADA.

Timing Is Everything

A 67-year-old employee at Zeidler Tool & Die alleged that he was fired because of his age and in retaliation for filing an EEOC charge. The Federal Appeals Court in Cincinnati said his claim of age discrimination was frivolous – two older workers assumed his duties and there was no evidence to suggest that his age was a factor in the discharge decision.

But, Zeidler happened to fire the employee on the same day it learned that he had filed an EEOC charge. To prove retaliation, an employee must show a “causal connection” between the protected activity, such as filing a charge or an internal complaint, and the employment decision in question. Here, the Court said that the timing of the discharge decision, coming just a few hours after the Company received the EEOC charge, was enough evidence standing alone to establish the required “causal connection.”

The lesson? Even if you’re not mad, it’s a good idea to “cool down” for a while before taking adverse action against an employee who has just filed a charge or complaint. This is true even when, as sometimes happens, an employee files a charge or complaint in an effort to forestall discipline that the employee knows is about to happen.