On March 26, 2015—just one day before the Final Rule for the Family Medical Leave Act (“FMLA”) was to take effect—a federal court in Texas blocked the Final Rule’s application to the states of Texas, Arkansas, Louisiana, and Nebraska, pending a full determination of the issue on the merits in Texas v. United States.

The plaintiff States sued the U.S. Department of Labor (“DOL”) over the promulgation of the Final Rule, arguing that the DOL exceeded its authority by requiring states to violate Section 2 of the Defense of Marriage Act and their respective state laws prohibiting recognition of same-sex marriages from other jurisdictions.  Under the Final Rule, which we discussed here, legally married same-sex couples are included in the FMLA’s definition of “spouse” and are eligible to use FMLA leave to care for their spouse or family member, regardless of whether their marriage would be recognized in the state where they live.  In response to the plaintiff States’ lawsuit, the U.S. District Court for the Northern District of Texas ordered a preliminary injunction staying the implementation of the Final Rule to the plaintiff States.

The court first held that the plaintiff States have a substantial likelihood of succeeding on their claims that the Final Rule improperly conflicts with (i) the FMLA’s traditional definition of “spouse,” (ii) the Federal Full Faith and Credit Statute, and (iii) the states’ own definitions of marriage.  According to the court, the Final Rule interferes with the ability of state agencies to abide by the states’ definitions of marriage, causing the plaintiff States to suffer irreparable harm.

Tags: DOL, DOMA, FMLA
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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with…

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

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