SEGG Blog

Late on February 22, 2017, the Departments of Education and Justice (“Departments”) published a Dear Colleague Letter (“DCL”) withdrawing guidance which had previously been handed down by the Obama administration regarding public schools' treatment of transgender students.  The previous guidance came in the form of two other DCLs, dated January 7, 2015 and May 13, 2016, which together contained detailed directives for schools about transgender student issues.  

The most controversial piece of the Obama-era DCLs had attempted to condition receipt of federal funds on school districts allowing transgender students to use the restroom corresponding with their gender identity rather than with their sex assigned at birth.  That interpretation of the law has been the subject of several lawsuits in the last year, including G.G. v. Gloucester County School Board, in which the 4th Circuit held that according to Title IX and the federal government’s interpretation contained in the DCLs, a transgender male high school student (Gavin Grimm) was likely to prevail in his request to use the boys’ restroom at school.  The 4th Circuit therefore entered a preliminary injunction requiring the Gloucester district to allow Gavin to use the male restroom.  That decision was stayed by the United States Supreme Court last fall.

In the fall of 2016, another federal court reached the opposite conclusion in Texas v. US, and held that the 2016 DCL appeared to be an improper exercise of executive authority which had not gone through the proper process for making a new rule.  The court in Texas v. US issued an injunction nationwide, prohibiting the federal government from enforcing their DCLs as to restroom access.  Several other lawsuits are currently pending around the country with respect to the restroom issue in schools.   

G.G. is set to be heard by the Supreme Court on March 28th and Texas v. US is on appeal to the 5th Circuit.  However, with the withdrawal, these two cases lose much of their import, because parties in each were expressly relying on the 2015 and/or 2016 DCLs.  Either or both cases could go away on procedural grounds.  However, others of the pending transgender cases advanced other arguments to support restroom access, including Equal Protection under the U.S. and state constitutions.  That argument has not been affected by the Trump administration’s DCL, and so the issue could reach the Supreme Court again as those cases work their way through the judicial system.

Other lesser known provisions of the 2015 and 2016 DCLs directed schools on topics such as identification documents, names, pronouns, sex-segregated activities, privacy of transgender status, and discrimination/harassment based on transgender status.

The February 22nd DCL is only two pages long (you can read the whole document here) and does not address the above issues with any detail.  Instead, it simply withdraws the earlier guidance, stating that the Departments will no longer rely on any of the views expressed in the previous DCLs.  The stated purpose of the withdrawal is for the Departments to “further and more completely consider the legal issues involved” and also that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”   

This new DCL does make clear that the withdrawal does not take away transgender students’ protection from discrimination, bullying, or harassment, and promises that the Office for Civil Rights will continue to hear all claims of discrimination.  However, aside from that guaranteed protection, the withdrawal of previous guidance will likely create uncertainty for school administrators in the states which do not have state law on the topic (Missouri does not currently have relevant state law, though a bill is pending in the General Assembly which could resolve the restroom issue, at least temporarily). 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our school law attorneys if you have any questions regarding how to structure or modify your school or district's policies and/or practices given this change in the legal landscape.

This update was prepared by Robert A. Useted and Erin M. Leach.

In a ceremony in Springfield, Missouri on February 6, 2017, Missouri Governor Eric Greitens signed Senate Bill 19 into law, making Missouri the 28th “Right to Work” state in the nation.  The law, which will be effective August 28, 2017 (unless delayed or rejected by referendum) and will be found at R.S.Mo. § 290.590, states in relevant part:

No person shall be required as a condition . . . of employment to . . . become a member of a labor organization; pay any dues, fees, assessments or other similar charges . . . to a labor organization; or . . . pay to any charity or other third party any amount equivalent to . . . any dues, fees, assessments,or other charges required of members of a labor organization.

Before yesterday, even employees who were not members of a union could be required, under some collective bargaining agreements, to pay union dues or agency fees (the portion of dues that goes to internal advocacy and bargaining rather than to political endeavors), based on the rationale that unions are federally required to represent all employees.  Missouri’s new law means that labor organizations can no longer make such agreements.  Supporters of the law say that it will make Missouri more competitive and will attract business by reducing employers’ costs, while labor organizations worry that their ability to collectively bargain for workers will be undercut if some employees choose not to contribute dues or agency fees to their organizations.  History suggests a basis for the labor organizations’ concerns, particularly because union membership has been dropping in recent years.  Currently, the U.S. Bureau of Labor Statistics estimates that only about 6.4% of private sector employees – and  a total of 10.7% of private and public sector employees – are union members.     

Under the new law, which appears to apply to both public and private sector employers, any labor or employment agreement that violates the above provision will be immediately null and void.  Violation of the Right to Work law is a Class C Misdemeanor and the law mandates that local prosecutors and the Attorney General investigate and prosecute all such violations.  Additionally, aggrieved employees will be able to seek injunctive relief and money damages, including attorneys’ fees, for violations of the law. 

Missouri’s Right to Work law does not apply to several classes of employees, most notably federal employees, employees in exclusive federal enclaves, and workers in the railroad and airline industries.  Furthermore, the law does not go into effect until August 28, 2017, and explicitly grandfathers all labor agreements entered into before that effective date.  However, once those grandfathered agreements are renewed, extended, amended, or modified after the effective date, then the Right to Work statute will apply. 

The full text of the Right to Work law can be viewed here.  The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions or if you would like to discuss the impact of this law on your organization.

This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.

On November 22, 2016, a federal judge in Texas issued a nationwide injunction barring implementation of the United States Department of Labor’s new overtime rule under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), which was to become effective on December 1, 2016. 

The new rule, if it ever goes into effect, would represent the most significant modification of the FLSA’s overtime regulations in over twenty years.  Prior to the new rule, the longstanding “white-collar” overtime exemptions required that executive, administrative, and professional employees perform certain duties and be paid a salary of at least $23,660 annually (or $455 per workweek) in order to be exempt from overtime.  The new rule made no change to the duties test, but would have doubled the minimum annual salary level to $47,476.  Under the new rule, the minimum salary also would have automatically adjusted every three years to track a federal wage index. 

Yesterday’s injunction was issued by a federal district court judge in the Eastern District of Texas in a consolidated lawsuit, Nevada v. U.S. Department of Labor, No. 4:16-CV-00731 (E.D. Tex. Nov. 22, 2016), which was brought by 21 states and 50 business organizations.  The court held that the new rule is unlawful because it “exceeds [the Department of Labor’s] authority and ignores Congress’s intent” in that it raises the minimum salary level to such an extent that it “supplants the duties test.”  The court noted in support of its decision that under the new rule 4.2 million workers currently ineligible for overtime would automatically become eligible simply due to the new threshold salary.  The court expressly held that the injunction against implementation of the new rule extends nationwide.

The court’s ruling presumably will be appealed to the U.S. Court of Appeals for the Fifth Circuit.  It is unknown how long such an appeal will take or whether the appellate court (or the United States Supreme Court) will affirm or reverse the district court’s decision.  In any event, the injunction will remain in effect until such time as it is reversed, which almost certainly will not occur before December 1, when the new overtime rule was to go into effect.  Adding even more uncertainty is the recent election of a new president, which very well may result in the modification or withdrawal of the rule, even if it were ultimately held by the courts to be lawful in its current form.

In light of the uncertainty regarding whether and when the new rule will go into effect, employers now face difficult questions about whether to restructure salaries, modify job duties, hire part-time employees or take other steps that would be important if the new rule were to go into effect.  Employers who have not yet implemented changes are no longer legally required to do so.  Employers who have already announced changes in anticipation of the new rule now must decide whether such changes are still warranted, whether because legally-binding promises have been made to employees or simply in the interest of preserving employee morale.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions or if you would like to discuss how to proceed under these circumstances.

This update was prepared by David A. Castleman and Erin M. Leach.

On September 14, 2016, the Missouri legislature overrode the governor’s veto and passed House Bill No. 1432, a copy of which you can find here.  Under that bill, which was effective October 14, a school district employee, other than a probationary teacher, who is put on paid administrative leave must be given a hearing within sixty (60) days from the date the employee was placed on such leave if the employee is not removed from administrative leave within thirty (30) days after being placed on such leave.  Although the hearing can be continued for good cause, it cannot be continued for more than 180 days from leave commencement.  Further, within thirty (30) days of placing an employee on administrative leave any school district must inform the Board of Education of the reason or reason(s) for the employee’s placement on administrative leave.  Finally, the District must provide a writing to the employee the “general reason or reasons” for the leave.

These new requirements do not apply under circumstances where the employee’s misconduct is the subject of certain law enforcement investigations.

The practical effect of this statute is that school districts will be required to act quickly in connection with any investigation and decision after an employee (other than a probationary teacher) is placed on administrative leave.  Therefore, Districts may want to fully develop the facts before placing an employee on administrative leave if the employee is not creating a safety or health issue that requires immediate action.  Districts must carefully draft the “general reason or reasons” why the employee is placed on administrative leave because these reasons may bind the District in subsequent, such as employment discrimination, proceedings.  The statute likely will prevent Districts and the employee from agreeing to a long leave in lieu of a hearing on termination.  Therefore, Districts likely should promptly file charges to terminate permanent contracts and set the hearing within sixty (60) days of the date that the permanent teacher is placed on administrative leave.  In addition, employees who may not otherwise be entitled to hearings, such as classified employees, now are entitled to hearings under this statute.

Because the statute provides that a hearing “shall” occur, the parties may not be able to waive the hearing.  However, the statute does not describe the nature, extent or procedures of the hearing.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert.

The Occupational and Safety Administration’s (“OSHA”) new electronic reporting requirements impact certain employers’ post-accident drug testing policies that require an automatic drug test following a work related injury.  OSHA adopted the rule in May 2016, (effective August 10, 2016) in order to improve tracking of workplace injuries and illnesses, by requiring certain workplaces to submit specified information electronically.  See 29 CFR 1904.  The workplaces governed by the new rule include all establishments with 250 or more employees that were already subject to OSHA’s record-keeping requirements as well as establishments in certain designated industries with 20 or more employees.  Id. at Sections 1904.41(a)(1) & (a)(2).   

Though the purpose of the rule is administrative, the commentary to the rule also states that “. . . blanket post-injury drug testing policies deter proper reporting.” Cmt. to Section 1904.35(b)(1)(iv).  Specifically, OSHA states that its rule prohibits employers from “ . . . using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”  Id.  Instead, OSHA suggests that employers should use post-injury drug testing only when there is “. . . a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” unless the drug testing is required by federal or state law or regulation.  Id.  According to OSHA, bee stings, repetitive strain injuries, injuries caused by a lack of machine guarding or by a machine or tool malfunction are examples of work accidents in which employee drug use likely was not a factor.  Therefore, drug testing after such an accident/injury likely would violate OSHA’s rule.  Unlike some other retaliation prohibited by Section 11(c) of the Occupational Safety and Health Act, OSHA can enforce this prohibition without an employee complaint.

Many employers have policies that require an automatic post-accident drug test if the accident results in an injury.  Unless and until the OSHA rule is determined to be unlawful, we believe that employers subject to the rule likely should modify any automatic post-accident testing policy (except those applicable to Department of Transportation testing or other federal or state requirement) to provide that a post-accident test will be administered when there is a reasonable possibility that employee drug use contributed to the injury.  Please let us know if you would like us to determine whether your company (establishment) is subject to this rule and if so, whether you would like us to analyze or modify your company’s policy.  

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Erin M. Leach.

On May 18, 2016, The United States Department of Labor released its final revised overtime rule under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”).  This rule represents the most significant modification of the FLSA’s overtime regulations in over twenty years. 

Prior to the rule, the longstanding overtime exemption requirements were: (1) employee is paid on a salary basis rather than an hourly wage basis; (2) employee is paid at a salary level of at least $23,660 annually (or $455 per workweek); and (3) employee’s duties meet the elements of a professional, administrative, executive, or outside sales (collectively referred to as “white-collar”) exemption.  Requirements (1) and (3) remain unchanged by the rule.  However the rule significantly modifies requirement (2) by raising the threshold salary level to $47,476 annually (or $913 per workweek).  Consequently, “white-collar” employees with a salary less than that amount will no longer be exempt, and therefore will need to record their time and be paid overtime for working more than 40 hours in a workweek.  This changed salary level has the potential to affect the wages of over four million U.S. workers in its first year of implementation. 

The rule goes into effect December 1, 2016, and applies to all employers covered by the FLSA.  In addition, the new salary threshold is not static; it is set to adjust every three years, beginning January 1, 2020, and tracking the 40th percentile of wages earned by full-time salaried workers in the lowest wage census region in the United States.  Other modifications made by the final rule include that “highly compensated” employees must be paid an annual salary of $134,004 (previously $100,000) in order to meet that exemption, and that employers will be allowed to include nondiscretionary bonuses and incentive payments, including commissions, in satisfying a portion of the minimum salary requirements for both “white-collar” and “highly compensated” employees. 

As a result of this final rule, employers should undertake a comprehensive and careful audit of their current wage and salary structures to ensure that they make appropriate adjustments for salaried employees classified as exempt currently earning between $23,660 and $47,476.  Based on each employer’s needs and staffing practices, there are several potential ways in which compliance with the new rule can be achieved, including: raising salaries, decreasing salaries to account for anticipated overtime, reclassifying employees, limiting or requiring pre-approval for overtime hours, redistributing workloads, using more part-time employees, using outside vendors to perform certain functions, and restructuring salaries to include bonuses/incentive pay. The enactment of this major change might also signal that it is a good time for employers to reconsider and update all of their exempt/nonexempt classifications, particularly with regard to jobs that have changed in the last 20+ years.  And, because the salary threshold level is set to adjust every three years going forward, employers need to continually review the above possibilities and consider their application to each employer’s particular workforce.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.

On September 22, 2015, the Missouri Supreme Court, in a 5-2 decision, reversed a jury verdict in favor of the Kansas City Chiefs in a Missouri Human Rights Act (“MHRA”) age discrimination case brought by a former employee on the ground that the trial court improperly excluded evidence from numerous other older employees relating to the cessation of their jobs.  Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107 (Mo. banc 2015).  Plaintiff, who was 61, was terminated for poor performance and insubordination and was replaced by a 37-year-old employee.  At trial, plaintiff had evidence of several possible age-related statements made by Chiefs’ management, and his theory was that the Chiefs instituted a policy of terminating older workers and replacing them with younger workers.

The trial court had excluded from evidence the testimony of 17 former employees, who were going to testify about the termination of their employment, replacement by younger workers, and their claims against the Chiefs.  The trial court excluded this evidence on two grounds:  (1) plaintiff alleged only one act of discrimination, not a pattern and practice (systemic and repeated discriminatory conduct), and therefore the testimony was irrelevant to the claim; and (2) these former employees were not similarly-situated to plaintiff, meaning they did not have the same supervisor, same decisionmaker, or similar job type.  The Chiefs prevailed at a jury trial, and plaintiff appealed.

The Missouri Supreme Court reversed the jury verdict and remanded the case for retrial, holding that the trial court abused its discretion in excluding the circumstantial evidence from the other employees allegedly terminated because of their age.  The court held that this type of “me too” evidence of other acts involving other employees was not limited to a pattern and practice claim and did not require a plaintiff to show that the other employees were similarly-situated.  The Supreme Court also ruled that such evidence could come in regardless of whether the same decisionmaker was involved in the termination decisions.  The Court reasoned that a plaintiff who alleges or has a theory of a top-down strategy to replace older workers can offer this “me too” evidence and that the trial court must do an individualized, fact-based analysis to determine its admissibility.

The implications for employers facing MHRA claims is that plaintiffs probably will seek (and likely obtain) in discovery information relating to other claims of discrimination or terminations involving other employees in the same protected class (e.g., race, age, gender or disability) on an organization-wide basis.  Practically, this will likely make discovery more burdensome and expensive.  In addition, at trial, there is the risk that testimony from another employee, who might be in a completely different department with a completely different employment history, could be admitted into evidence, which means that disgruntled former employees could strengthen their cases by testifying in each other’s cases.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Kevin A. Sullivan.

On October 27, 2015, the Missouri Court of Appeals, Western District, in a case of first impression, held that employees could not state a cause of action for discrimination or harassment based on sexual orientation or preference under the Missouri Human Rights Act (“MHRA”).  Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479 (Mo. App. W.D. 2015).  In Pittman, a male homosexual employee filed a lawsuit under the MHRA claiming that he suffered discrimination and hostile work environment due to his sexual preference, alleging that the president of the employer made several highly insulting and derogatory remarks to the employee and treated him differently than heterosexual co-workers.  The trial court granted the employer’s motion to dismiss, which was appealed by the employee.

In a 2-1 decision, the appellate court’s majority opinion affirmed the dismissal and held unequivocally that the “Missouri Human Rights Act does not prohibit discrimination on the basis of sexual orientation.”  In so holding, the majority opinion strictly interpreted the MHRA’s language and found that it prohibits discrimination based only on “sex” – which by dictionary definition means only “one of the two divisions of human beings respectively designated as male or female.”  The majority also relied on the fact that the employee had alleged sexual preference discrimination, not sex discrimination.  The majority stated that it was bound by the language of the MHRA and could not rewrite it.  It found persuasive that Missouri, unlike other states, has not enacted legislation prohibiting sexual orientation discrimination, which tends to show that the Legislature did not contemplate barring such discrimination.

The lengthy dissenting opinion included interpretational and policy grounds to support inclusion of sexual orientation discrimination in conduct prohibited by the MHRA.  First, in using the same dictionary definitions, the dissent interpreted “sex” to include sexual orientation because sexual orientation is inherently a sex-based consideration.  The dissent further noted that the MHRA should be broadly construed in favor of applicability of the statute.

Currently, the Missouri Supreme Court is deciding whether or not to accept transfer of the case, which it could do based on the lengthy dissent and the important issues in the case.  It should be noted that Missouri appellate courts have previously held that same-sex discrimination and harassment is prohibited by the MHRA.  We will monitor this issue because the recognition if a MHRA claim for sexual orientation discrimination exists, then employers must account for it in policies, practices, and employee training.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Kevin A. Sullivan.

On August 27, 2015, the National Labor Relations Board (“NLRB”) broadened the joint-employer standard under the National Labor Relations Act (“NLRA”) in Browning-Ferris Industries of California d/b/a BFI Newby Island Recyclery, Case 32–RC–109684.  This is a significant decision because it modifies long-standing precedent.  Generally, two entities are joint employers if (1) they are both “employers” within the meaning of the common law and (2) they share or codetermine those matters governing the essential terms and conditions of employment.  Previously, the NLRB had held that the second factor is met if the employer has “direct and immediate” control of the employees.  However, under the NLRB’s new interpretation in Browning-Ferris, the second factor now can be established by the simple “right to control” possessed by an entity or by its “indirect control” of employment matters.  

In the Browning-Ferris case, BFI used a staffing agency.  The agency was highly involved in the day-to-day affairs of BFI’s employment matters; it was responsible for hiring, paying, offering pay increases to, supervising, disciplining, and firing its temporary workers.  But despite the agency’s apparently singular control of the terms and conditions of those workers’ employment, the NLRB found that BFI was a joint employer.  The NLRB’s decision was based in part on the contract between the parties, which reserved BFI’s right to participate in many employment decisions, even though the NLRB acknowledged that BFI did not in fact exercise such powers.  This “right to control” the temporary workforce, along with BFI’s “indirect control” over temporary workers by its control of the facility itself and of the logistics of the recycling line, was enough to create a joint-employer relationship under the NLRB’s restated test.  The NLRB’s stated intent of the new interpretation is to better effectuate the purposes of the NLRA, by accounting for the fact that over 2.87 million American workers are now employed through temporary agencies and are thereby subject to somewhat unique employment relationships.

This decision may impact your business to the extent that it is subject to the NLRA and its contracts, or otherwise works with, temporary staffing agencies, or other contractors.  This expansion of the joint-employer standard creates a greater risk that an employer will be found to be a joint employer and therefore could be subject to union organizing activities by, and possible collective bargaining obligations with, employees of such agencies or contractors.  Therefore, these arrangements, including written contracts, should be carefully analyzed and structured to avoid joint employer status.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, and Erin M. Leach.

On July 15, 2015, The United States Department of Labor’s Wage and Hour Division released an Administrator’s Interpretation, which broadly defines an “employee” under the Fair Labor Standards Act (“FLSA”) so that most workers would be classified as employees, not independent contractors.  The Administrator’s Interpretation applies an “economic realities” test to the FLSA’s broad “suffer or permit” employment standard to conclude that an employer “suffers or permits” an employee to work if that individual is dependent on the entity as a matter of economic reality.

The economic realities test examines six factors to determine whether a worker is an independent contractor: (1) whether the work is an integral part of the employer’s business; (2) whether the worker’s managerial skill affects profits; (3) the investment of the worker; (4) whether the worker’s job requires special skills; (5) the permanence of the worker’s relationship with his employer; and, (6) the degree of the employer’s control over the worker.  One of the more significant changes to the economic realities test is that a comparative analysis is now required to analyze the worker’s investment versus the employer’s investment in the enterprise.  Additionally, a worker’s independence is no longer conclusively proven by the ability to flexibly schedule their work.  The full text of the Wage and Hour Division’s Administrative Interpretation, which includes a thorough discussion of all six factors, can be found here.

Obviously, employee status under the FLSA triggers employer obligations, including payment of overtime.  Both the DOL and plaintiffs’ lawyers aggressively pursue employee misclassifications.  Even though the Administrator’s Interpretation is not binding on courts, they likely will defer to it.   As a result, employers should reexamine their current relationships with independent contractors to determine if workers are properly classified under this Administrator’s Interpretation.  Any semblance of a permanent or indefinite relationship with an independent contractor should be avoided, and the terms of the relationship or the specific project should be spelled out in the agreement.  Moreover, companies should refrain from giving independent contractors rights and access that militate against their status as independent contractors. 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Kevin A. Sullivan.

On June 27, 2015, the United States Supreme Court held that marriage between same-sex couples is a fundamental right under the Fourteenth Amendment’s due process and equal protection clauses.  Obergefell v. Hodges, 135 S.Ct. 2584, 575 U.S. ___ (2015).  Although further litigation may occur, this ruling clears the way for same-sex marriage in all 50 states.  This ruling is significant for employers because same-sex couples will now probably be entitled to state marriage and company spousal benefits.

Since marriage triggers multiple workplace benefits, employers should reexamine any policies implicating spouses and those that may define marriage along gender-specific lines. The most relevant benefits affected by this decision are health, bereavement, retirement and fringe benefits.  Leave policies, including FMLA policies, should also be examined. Many employers likely have already begun this process in the wake of the Supreme Court’s decision in U.S. v. Windsor, 133 S.Ct. 2675, 570 U.S. ___ (2013), which held federal benefits could not be denied to validly married same-sex couples, and Barrier v. Vasterling, No. 1416-CV03892 (Jackson Cnty. Cir. Ct., Oct. 3, 2014), where a Missouri court ruled same-sex couples could not be denied benefits under state law. It is also important to note that Obergefell neither creates a new protected class under Title VII nor expands any discrimination laws.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and D. Leo Human.