Employment Law Update
Although we will soon be back in the throes of an administration change and the accompanying changes in the employment arena, there are several interesting developments happening independent of the most recent elections:
Supreme Court to Hear Oral Argument in Reverse Discrimination Case
Oral argument is scheduled before the United States Supreme Court on Feb. 26, 2025, in Ames v. Ohio Department of Youth Services. Plaintiff Marlean Ames initially brought suit against her employer after being denied promotion to Bureau Chief and subsequently demoted. The employees who were hired for the Bureau Chief job and for Ames’ former position were both gay. Ames is heterosexual. Ames’ suit alleged discrimination based on her sexual orientation in violation of Title VII of the Civil Rights Act of 1964. The lower court dismissed Ames’ suit because she had failed to make the required evidentiary showing of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Ames appealed to the Supreme Court. The Court accepted the case to resolve the split among Circuit Courts regarding the evidentiary test used in reverse discrimination cases – i.e. whether there must be a greater showing of extra “background circumstances” to have a successful claim of reverse discrimination. The Tenth Circuit currently applies the background circumstances test in reverse discrimination claims.
A ruling is anticipated on or before June1, 2025, and although the case does not challenge or involve a DEI program, it is expected to have a bearing on reverse discrimination claims brought against employers who have enacted DEI programs. Such cases have been largely unsuccessful to date. However, if the Supreme Court sides with Ames and strikes down the requirement for showing “background circumstances,” the decision will clear initial evidentiary hurdles in those jurisdictions that apply the test, making it easier for majority community plaintiffs to meet their burden under a reverse discrimination claim and potentially encourage more suits challenging DEI programs.
Employers can reduce their risk by working with an employment attorney to craft a legally-defensible DEI program and focus on making objectively supported employment decisions.
Sixth Circuit Expands Coverage of FMLA to Sibling Care
The Sixth Circuit recently issued a decision in Chapman v. Brentlinger Enterprises expanding the scope of the Family Medical Leave Act (FMLA). The FMLA “entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” One such reason is to care for a family member who has a serious health condition. “Family member” is defined as a spouse, child or parent.
In the Chapman case, the plaintiff requested time off to care for her adult sister who was dying of cancer in another state. Her employer denied her request, and Chapman used paid time off to travel and care for her sister, including cooking, feeding, bathing, toileting, cleaning and other basic care. Chapman exhausted her paid time off bank and, initially, her employer provided additional unpaid time. However, Chapman struggled to balance her travel and care duties with her job duties and developed attendance and punctuality issues. Her employer terminated her for those issues two days before her sister died. Chapman threatened to file suit for FMLA interference and other claims, and her former employer, in turn, threatened to seek sanctions against Chapman for bringing a frivolous suit because siblings are not on the list of covered relatives under the FMLA.
Nonetheless, Chapman brought suit under the FMLA and argued that the FMLA provides covered leave for an in loco parentis parent or child, not solely a biological parent or child. Under this theory, Chapman should be considered as her sister’s parent for purposes of taking FMLA leave. The trial court disagreed with Chapman’s theory on the grounds that Chapman had not functioned as her sister’s parent or guardian before her sister turned 18 years old (i.e. when her sister was still a child). Chapman appealed and won. The Sixth Circuit found that Congress intended to reach other relatives or adults outside the traditionally defined nuclear family and concluded that the relationship need not form during a person’s minority. The Court instead looked at whether the person requesting accommodation under the FMLA had taken on more care responsibility than one would traditionally be expected to provide to a sibling. The Sixth Circuit remanded the case to the district court for additional factual finding regarding Chapman’s relationship with her dying sister and whether it constituted in loco parentis relationship.
Although currently limited to the states covered by the Sixth Circuit – Kentucky, Michigan, Ohio and Tennessee – the decision is an acute departure from how employees have understood and applied FMLA coverage. Employers should consult legal counsel if a similar circumstance – an employee requesting FMLA coverage for caring for a person outside the traditionally understood spouse, child or parent – arises in their business.
NLRB Unexpectedly Upholds Non-compete Provision
Although the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently announced her intention to request the NLRB find all non-competes unlawful, not all administrative NLRB judges have followed suit. In a case pending before Administrative Law Judge (ALJ) Robert Giannasi, he found that no current NLRB precedent makes non-competes unlawful. The case pending before the ALJ involved a wheelchair manufacturer Permboil, Inc. that had sued a former employee for violation of a non-compete provision. The provision barred former employees from working for competitors in the United States for one year. In addition, the agreement included a confidential and proprietary information provision and a non-disparagement provision in favor of the employer. ALJ Giannasi upheld the provisions because they did not curtail the employees’ National Labor Relations Act Section 7 rights and it was supported by business reasons specifically stated in the agreement: “Any Section 7 rights affected by employees agreeing not to be employed by a competitor is remote and, in any event, overridden by the language spelling out the business reasons for the ban.”
Although it remains to be seen how the NLRB will approach non-compete agreements in the future, the lesson for employers is to draft solid non-competes that are as narrowly tailored to business reasons as possible and that clearly articulate the grounds for the restrictions.
Immigration Workplace Inspections and I-9 Audits to Increase in 2025
Employers should prepare for increased audits of I-9 immigration documents and workplace raids as President Trump pursues his pledge to deport millions of undocumented workers. To avoid civil penalties, employers should take preventive steps of reviewing and correcting their I-9 forms, preferably in conjunction with a qualified immigration attorney.
I-9 audits begin with the service of a subpoena from the U.S. Department of Homeland Security, giving the employer only three days to produce all I-9 documents for current and former employees. Fines for technical violations can be as high as $2,789, while penalties for knowingly hiring undocumented workers can reach $27,894.
Industries with historically-high percentages of undocumented workers, such as construction, landscaping, meatpacking, manufacturing, restaurants, bars, hotels and agriculture are especially likely targets and should definitely ensure their I-9 documents are in order. These employers should also consider enrolling in E-Verify to further improve compliance, if not already doing so.
In addition, employers should review their current workforce to identify any employees who may need to be replaced should they lose work authorization under temporary programs such as EAD for H-4 spouses; DACA (for immigrants brought to the U.S. as children); Temporary Protected Status (allowing persons from designated countries to remain in U.S. because of war or other extraordinary conditions); and “first-day” CPT work authorization for F-1 students. These programs could be terminated by the new administration.
Finally, applications and extensions for existing H-1Bs, TNs, E-3s and EADs will also likely be further restricted or delayed by the new administration. As a result, it is important to ensure that extensions are requested as soon as legally possible and that all employment-based applications have the necessary documentation to meet all of the specific legal requirements.
Question Corner
FMLA Does Not Cover Bereavement, but Such Leave May be Covered Anyway
Q. An employee who has been approved for intermittent Family and Medical Leave Act (FMLA) leave to care for his mother is asking for two days off to bring his mother to his cousin’s funeral in another state. Would this also be covered under the FMLA?
A. The employee may be covered under their FMLA leave here while taking their mother to the out-of-state funeral. The FMLA requires employers to grant employees leave for, among other things, the care of a parent with a serious health condition. While the FMLA does not specifically cover bereavement leave, the employee here has already been granted leave to care for their mother, who presumably has a serious health condition. Thus, the employee could argue that going to the funeral is necessary to ensure that they are able to attend to their mother’s condition. The employee’s position is all the more persuasive if they can assert that their mother’s condition will be exacerbated by the death in the family or the travel to the funeral.
Obviously, this is a general answer based on a few assumptions—specifically, the nature of the mother’s condition and her need for assistance. An employer seeking guidance on FMLA leave compliance should retain an attorney who can ascertain all the relevant facts and make a specific determination.
