Monday, March 7, 2011

The FMLA Marriage Penalty

In Thompson v. North American Stainless, the Supreme Court recently held that an employee may bring a Title VII retaliation claim if he is fired because his fiancee, also a co-worker, filed a discrimination charge. Now, employers may be on edge about employees who have close relationships with one another.

I gave Thompson a fair amount of attention (OK, tons - See summary, quote in LawyersUSA, Proactive Employer podcast appearanceELinfonet post, oral arguments coverage, and even Circuit Court coverage). But it's not all sunshine and lollipops for co-worker couples (and it's not all doom and gloom for their employers). FMLA regulation 29 C.F.R. § 825.120 gives employers of married co-workers a special exception (or, perhaps a "penalty" to the married co-workers):
A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee's son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee's parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as a husband and wife are employed by the "same employer."
So, imagine if Thompson actually did marry his fiancee and then they had a baby... actually, per the oral arguments, they are married and have a two-year old daughter. If his employer hadn't fired him, they could have limited the couple to 12 combined weeks for the birth of their child.*

* At least in theory. We would need more detail to know for sure. For example, whether the employer is a covered entity, whether an alternative basis for leave existed, etc.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.