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New Definition of Spouse Under FMLA, Persuader Rule Expected From DOL in March

Monday, December 9, 2013

By Gayle Cinquegrani  

Nov. 29 -- The Labor Department's fall regulatory agenda, issued Nov. 26, said the department in March will issue a rule that would revise the definition of spouse as used in the Family and Medical Leave Act and a rule that would expand the reporting requirements of employers that hire labor relations consultants to combat their employees' attempts to form a union.

The agenda said the Wage and Hour Division is planning to propose a rule in March that would revise the FMLA's definition of “spouse” in light of the U.S. Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013) (31 HRR 681, 7/1/13). In that case, the justices struck down the Defense of Marriage Act's exclusion of state-sanctioned, same-sex marriages from the federal definition of marriage.

The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons, including to care for the employee's spouse who has a serious health condition.

Also on the DOL agenda, the Office of Labor-Management Standards is planning to issue the final version of its persuader rule in March. As proposed, the rule would expand the reporting requirements under Section 203(b) of the Labor-Management Reporting and Disclosure Act when an employer hires a labor relations consultant to thwart its employees' unionization attempts if the consultant engages in persuader activities that go beyond the plain meaning of advice, even if the consultant has no direct contact with workers.

The persuader rule generated 9,000 comments when the agency proposed it in 2011 (29 HRR 1184, 11/7/11), and its publication in final form has been delayed.

The new agenda also stated that in October 2014 the OLMS will propose a rule that would require filers of Form LM-21, called “Persuader Agreements: Consultant Form LM-21 Receipts and Disbursements Report,” to submit the form electronically. The agenda said the proposal also could change the form's layout, instructions, and required level of detail.


Text of DOL's Statement of Regulatory Priorities for Fall 2013 is available at http://op.bna.com/dlrcases.nsf/r?Open=gcii-9dwman. DOL's Agency Rule List for Fall 2013 is available at http://op.bna.com/dlrcases.nsf/r?Open=gcii-9dwmjq.

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