Proposed Respect for Marriage Act of 2011 introduced in Congress

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Mr. Bosland Comments: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Currently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

Senate bill is posted on the Internet at:

http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET

Concerning the Doctrine of Primary Jurisdiction

Concerning the Doctrine of Primary Jurisdiction

Donato v Plainview-Old Bethpage CSD, 286 AD2d 388

The Doctrine of Primary Jurisdiction was the underpinning of a decision by a State Supreme Court justice in the Donato case -- a case involving an educator's claim that she was eligible for reinstatement from a preferred list.

As the Appellate Division noted, the Doctrine of Primary Jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”*

In other words, although the court has original jurisdiction, questions involving the exercise of an administrative body's special competence or expertise is to be referred to that body for an initial determination.

The doctrine of primary jurisdiction, the court explained, is intended to coordinate the relationship between courts and administrative agencies so that, among other things, the agency's views on factual and technical issues can be made available to the courts where the matter before the court concerns issues that are within the agency's specialized field.

According to the ruling, in 1991 Linda Donato's position at the District's Mattlin Middle School -- Social Studies Chairperson, Grades 5-8 -- was abolished for budgetary reasons. The district placed Donato's name on a preferred eligible list “for reappointment to a similar position” in accordance with Section 3013(3)(a) of the Education Law.

In 1997 the District created a new position -- District-wide Social Studies Chairperson, Grades K-12. Donato asked to be appointed to this new position from the Social Studies Chairperson, Grades 5-8, preferred list. The District, contending that the preferred list was not appropriate because the duties of the position, which it had abolished, were not similar to those of the new position, refused to use the preferred list to appoint Donato to the vacancy.

Donato, claiming that the two positions were, indeed, similar for the purposes of the certification of the preferred list, initiated an Article 78 action to compel the District to use the preferred list. If the preferred list were appropriate for filling the new position, the District would have to either appoint Donato to the new position or elect to keep it vacant.**

The Supreme Court dismissed the Donato's petition after concluding that the doctrine of primary jurisdiction was applicable. The court said that in this instance the Commissioner of Education should resolve the issue of whether or not the positions are similar for the purposes of certifying the preferred list.

The Appellate Division affirmed the lower court's ruling that the doctrine of primary jurisdiction applied in this case. Citing Hessney v Public Schools of Tarrytowns, 228 AD2d 954, the court pointed out that “the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether [Donato's] former position and the new position are similar within the meaning of Education Law Section 3013(3)(a).”

Another procedural wrinkle to consider: A statute sometimes allows an individual to file his or her complaint or appeal either (a) with a court or (b) with an administrative body. Examples of such “election” of jurisdiction opportunities:

1. Section 76 of the Civil Service Law provides that an individual may file his or her appeal from a Section 75 disciplinary determination by an appointing authority initially with the civil service commission having jurisdiction within thirty days of the decision or with the court pursuant to Article 78 of the Civil Practice Law and Rules.

2. Section 297.9 of the Executive Law, New York's Human Rights Law, allows a human rights complaint to be initially filed with a court or with the State Division of Human Rights.

* Another doctrine frequently cited in cases challenging an administrative decision is the doctrine of the exhaustion of administrative remedies. In contrast to the doctrine of primary jurisdiction, the “exhaustion doctrine” involves satisfying a condition precedent to initiating litigation where there is an administrative appeal procedure in place. Typically courts will decline to assume jurisdiction if the complaining party has failed to exhaust his or her available administrative remedy.

** As a general rule, reinstatement from a preferred list does not require that the individual serve a probationary period in contrast to all other types of permanent appointment, which typically require that the individual satisfactorily complete a probationary period in order to attain tenure in the title.

Constitutionally protected speech of public officers and employees

Constitutionally protected speech of public officers and employees

McKinley v Kaplan, CA11, 262 F. 3d 1146

The general rule is that a public employee cannot be disciplined simply for exercising his or her constitutional right to free speech concerning matters of public interest. Where the employee speaks out on matters of public concern, the government bears the burden of justifying any adverse employment action it might take against the individual.

A public employee's speech concerning a private or personal interest, however, is a different matter. The public employer is not required to justify disciplinary action taken in response to an employee's speech regarding personal matters, such as a change in the employee's duties or work location.

Further, in Pickering v Board of Education, 391 US 563, the U.S. Supreme Court held that a public employee's right to freedom of speech is not absolute because “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”

The McKinley case raises another element to consider concerning the right of a public employer to regulate the speech of its employee -- the employer's expectations with respect to a policy-maker's speech concerning matters of public interest related to the individual's work.

Margaret McKinley, a volunteer and unpaid member of the Miami-Dade County Film, Print, and Broadcast Advisory Board,* was removed from her position because, said the County, she had expressed and supported a position that was “inappropriate and insulting to the community” represented by the sponsor of her appointment as well as being inconsistent with County policy.

According to the decision, the County had adopted a policy “prohibiting contracts between the County and any firms doing business either directly or indirectly with Cuba.” After determining that an organization planning an Entertainment Conference “was doing business with Cuba by inviting Cuban artists to perform,” the County voted against providing any public monies to support the event.

McKinley disagreed with this decision and made a statement at a public meeting held by the Miami Beach Fashion, Film, Television and Recording Committee to the effect that losing the Conference would hurt Miami's entertainment industry and that the County's action improperly reflected only the views of the Cuban-American community. She was quoted in the Miami Herald as follows: "While we respect and appreciate the concerns of Cuban-Americans in the exile community, allowing a few people's political standpoint to dictate the potential economic growth of the area is not for the benefit of the community as a whole."

McKinley sued the County after she was dismissed from her position, contending that the county violated her First and Fourteenth Amendment rights because she was fired as a result of the public statement she made concerning a County policy with which she disagreed.

A federal district court judge dismissed McKinley's complaint, holding that the First Amendment did not provide her with any right to continued government employment. The court's rationale: McKinley's role on the Film Board involved public contact and providing input into County policy decisions and she failed to properly represent the views and policies of the County to the public. The Circuit Court affirmed the ruling, pointing out that the Pickering decision sets out a four prong test for determining if an employee's protected speech rights have been violated by a public employer's action:

1. Did the speech involve a matter of public concern?

2. If so, does the government's interest in promoting the efficiency of the public services it performs through its employees out weight the employee's interest in protected speech?

3. If so, did the employee's speech play a substantial part in the government's decision to discharge the employee? and, finally,

4. If the speech was a substantial motivating factor in the employer's decision, has the government shown by a preponderance of the evidence that it would have discharged the employee regardless of the protected conduct?

The parties agreed that the only issue to be addressed in this instance was “the balancing prong of the Pickering test” -- weighing the respective interests of the County and McKinley. According to the court:

1. On McKinley's side of the scale is her interest in voicing her opinion on a controversial county resolution.

2. On the County side is its need to maintain loyalty, discipline, and good working relationships with those employees and board members they appoint and supervise.

The Circuit Court's conclusion: the balance tipped in favor of the County based on the proposition that “governments have a strong interest in staffing their offices with employees that they fully trust, particularly when the employees occupy advisory or policy-making roles.” Finding that McKinley was a “policy-maker,” based on the fact that her duties required her to serve in an advisory capacity with input on policy issues, the court concluded that this factor “gives the County a greater interest in removing her based on her speech.”

The Circuit Court then said that “[p]erhaps more important to our decision than [McKinley's] policy influence or public contact, however, is the fact that [McKinley] served as an appointed representative of the County ... and she failed to support [its] interests.” According to the ruling:

It was not [McKinley's] right to free speech that was affected by the County Commission's decision to remove her. Rather, it was her right to maintain an appointed position ... in light of her choice to publicly dissent from [the County's] clearly stated views and policies.

Whistle blowing involves another element that must be considered when determining if the employer's interest in limiting its employees' speech outweighs an employee's interest in free speech. For example, Section 75-b of the Civil Service Law, provides that a public employer “shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information regarding a violation of law ... which violation creates and presents a substantial and specific danger to the public health or safety....” It also includes a provision, Section 75-b.4, that states that nothing in the Section “shall be deemed to ... prohibit any personnel action which otherwise would have been taken regardless of any disclosure of information.” [See, also, Labor Law 740].

Sometimes it may be difficult to distinguish the line between “free speech” and “whistle blowing.” For example, did the McDonald case [McDonald v City of Freeport [TX], 834 FSupp 921] concern the issue of “free speech,” or “whistle blowing” or, perhaps, both.

In McDonald the court considered allegations made by police officers that the City fired one police officer and forced another to retire after they spoke to the media about alleged police misconduct. Some might classify this type of activity “whistle blowing.” The federal district court, however, made its ruling based on “free speech” concerns, holding that such action violated the police officers' First Amendment rights.

In this instance, said the court, the employee's interest in revealing such matters of public concern outweighed the police department's interest in maintaining “an efficient police department.” According to the decision, only a concern for “national security” or similar situations would serve to limit an employee from revealing improper governmental practices to the public.

* The pay status of the individual has no bearing with respect to an individual's alleged terminated for an improper or unconstitutional reason. As the court indicated in Hyland v Wonder, 972 F.2d 1129, serving as a volunteer constitutes a government benefit or privilege and that “[r]etaliatory actions with less momentous consequences [than loss of employment], such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech.”