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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






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The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







April 3, 2015


 Health and Welfare Law Alert





Federal Judge Stops DOL's Enforcement of New FMLA Same-sex Spouse Rule





A federal judge in Texas has granted a temporary injunction preventing the DOL from enforcing its new rule under the Family and Medical Leave Act ("FMLA") that would extend FMLA protections to same-sex couples. The injunction resulted from a lawsuit filed by the state of Texas, and joined by the states of Arkansas, Louisiana and Nebraska, in response to the DOL's expansion of the definition of "spouse" under the FMLA.


Background. The FMLA requires, among other things, that employers grant leave for workers to provide care for sick family members, including spouses. FMLA regulations originally provided that the term "spouse" was to be defined according to the law of the state where the employee resides rather than the jurisdiction where he or she was married. This rule became particularly significant after the Supreme Court's decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act ("DOMA"). (Section 3 of DOMA restricted the definition of marriage for purposes of federal law to opposite-sex marriages.) The Court's decision in Windsor served to extend FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriage.


Following Windsor, DOL adopted a "state of celebration" rule, under which spousal status for FMLA purposes is determined by the law of the state where the employee was married (rather than the state where the employee resides). Thus, same-sex couples who are married in a state that recognizes same-sex marriage are married for FMLA purposes, even if the state where they reside does not recognize the marriage.


Legal Proceedings. The plaintiffs argued that the DOL's final rule should be enjoined in states that do not recognize same-sex marriages. Section 2 of DOMA, which survived the Supreme Court's scrutiny in Windsor, provides that states may refuse to recognize same-sex marriages performed under the laws of other states.


The federal district court addressed the issue of whether DOL exceeded its jurisdiction by issuing a final rule that requires the plaintiff states to violate state laws prohibiting the recognition of same-sex marriages from other jurisdictions. According to the court, DOL's rule on same-sex marriages appears to improperly pre-empt state laws forbidding the recognition of same-sex marriages.


The plaintiffs also claimed that the DOL rule conflicts with the statutory definition in the FMLA and, therefore, should be found invalid. The court determined that based upon the original meaning and subsequent laws, Congress intended to give marriage its traditional meaning and preserve a state's ability to define marriage without being obligated by another jurisdiction's laws.


The court ultimately decided that the plaintiffs were likely to show the DOL's final rule was contrary to the FMLA and granted a preliminary injunction to enjoin the DOL from enforcing the final rule in the four plaintiff states.


Action Steps. The preliminary injunction is effective in only the four plaintiff states involved in the lawsuit. Thus, employers outside these states are advised to follow the DOL's new final "state of celebration" rule. However, it appears that, for now, employers doing business in Texas, Arkansas, Louisiana and Nebraska may continue to follow the old "state of residence" rule.


Also, it should be noted that the Supreme Court is in the process of determining whether states may ban same-sex marriages without violating the U.S. Constitution. Its decision in this matter may negate the rationale behind the injunction issued in this case. 








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