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Wednesday, February 4, 2015

Alabama Same-Sex Marriage and Employee Handbooks

By: Tommy Eden

On Wednesday, the 11th Circuit Court of Appeals refused to strike down a decision by United District Judge Jenny Grenade overturning Alabama's ban on same-sex marriages. On Thursday the 11th Circuit issued a memorandum to counsel that it was holding in abeyance (suspending) appeals on all same-sex marriage cases until the U.S. Supreme Court Rules in the case of DeBoer v. Snyder case, to be decided by June or earlier. This past September the United States Department of Labor proposed new rules regarding the definition of who qualifies as a husband or wife under the Family Medical Leave Act (FMLA). These new rules will make profound changes now that same-sex marriage will become the law of Alabama as of February 9, 2015, without further judicial intervention. This comes as the result of the June 26, 2013, U.S. Supreme Court 5-4 decision in United States v. Windsor which declared unconstitutional part of the federal Defense of Marriage Act (DOMA) which defined marriage solely as a legal union between a man and a woman.

Currently the FMLA definition of spouse is "a husband and wife as defined or recognized under state law for purpose of marriage in the state where the employee resides, including common – law marriage in states where it is recognized." Under this definition of “spouse”, currently eligible employees may take FMLA leave to care for a same-sex spouse only if they reside in a state that recognizes same-sex marriage – which Alabama now does. If the new FMLA regulation is implemented as proposed, which appears to be a certainty, the so-called "place of celebration" rule would allow all legally married couples, whether opposite sex or same-sex, or married under common law, to take  FMLA and to be consistent regardless of the State they live in.

Common Sense Counsel: If you have not noticed, we are in the mist of a societal transition. By the end of 2015, 50% of the workforce will be comprised of millennials, those born after 1980, which are driving this issue. Surveys show that 56% of that age group is in favor of same-sex marriage. So you would be wise to consider taking the following steps:

1) Revise your FMLA policy to define "spouse" to  “include employees in a legal same-sex marriage”;
2) Determine what “celebration” documents will be necessary to establish spousal status;
3) Closely examine all handbook provisions to see if you wish to adopt one consistent definition of “spouse”, such as in your bereavement policy;
4) The other hot button issues worthy of throwing in the discussion is adding “sexual orientation and gender identification” in your EEO and Harassment policy to avoid a transgender EEOC charge; and

5) While you are tinkering with your handbook, give it an overhaul with new policies on social media, criminal background checks, solicitation and distribution, union avoidance, drug testing, military leave and workplace violence prevention.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3.