New FMLA Regulations Expand Definition of “Spouse” to Include Same-Sex Spouses in All States

LGBT flagLate last month, the Department of Labor issued a final rule that expands the definition of “spouse” for purposes of taking leave under the Family and Medical Leave Act (FMLA). The FMLA is a federal law that requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees for certain medical and caretaking reasons. Among those reasons, employees may take leave to care for a spouse with a serious health condition, care for a spouse seriously injured in the military, or attend to certain needs that arise from a spouse’s call to active military duty.

When the Defense of Marriage Act (DOMA) was still intact, “spouse” was defined as a husband or wife of the opposite sex. However, after the U.S. Supreme Court struck down the the portion of DOMA that defined marriage as between one man and one woman, the DOL revised its regulations. In 2013, the DOL revised the definition of “spouse” to include same-sex couples, but only if they lived in states that recognized same-sex marriages (called a “place of residence” rule). Nolo

But, this rule meant that same-sex couples were treated differently under the FMLA depending on what state they lived in. To correct this unequal treatment, the DOL issued a new rule last month to move to a “place of celebration” rule. Under the new rule, a spouse includes a same-sex spouse, as long as the marriage was valid in the place where it was entered into. In other words, as long as the marriage took place in a state that recognizes same-sex marriages, an employee can take leave to care for a same-sex spouse, regardless of what state the employee currently lives in.

A similar rule applies to spouses who were married in foreign county: The marriage must have been valid in the country where it was entered into. But, there’s an additional requirement: The marriage must also be capable of being entered into in at least one state. In other words, if the marriage would have been illegal in all 50 states, the couple will not be considered spouses under the FMLA.

The DOL regulations are scheduled to take effect on March 27, 2015. This means that employers in states that don’t recognize same-sex marriage will need to adjust their company policies. As long as an employee is legally married in any state, the employer will have to provide FMLA leave for the employee to:

  • care for a same-sex spouse with a serious health condition
  • care for a same-sex spouse who suffered a serious injury or illness while on active military duty, and
  • attend to certain needs arising from a same-sex spouse’s call to active military duty.

For more information on the FMLA, check out The Essential Guide to Family and Medical Leave, by Lisa Guerin and Deborah England (Nolo).

Can You Keep Horses and Other Pets in Bankruptcy?

2horsesASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon, 

I am considering Chapter 7 bankruptcy and am wondering what will happen to my two pet horses if I file? They are not worth much; I probably couldn’t even give them away. But I don’t want to file bankruptcy if I have to give them up.

Alysia 

Dear Alysia,

There are a few issues that arise when you file for Chapter 7 bankruptcy and have horses or other household pets. The first is whether the bankruptcy trustee will sell the horses and use the proceeds to repay your creditors (since your horses aren’t worth much, this is unlikely). The second is whether the bankruptcy trustee will dismiss your Chapter 7 bankruptcy because your pet care expenses are unreasonable.

Your Horses Are Property of the Bankruptcy Estate

When you file for Chapter 7 bankruptcy, all of your assets become property of the bankruptcy estate. This includes all of your personal property, and animals are personal property. However, state and federal law allow you keep certain types of property – called exempt property. The idea is that you shouldn’t be left without basic items for living and working. (Learn how bankruptcy exemptions help you keep property.)

Are Your Pets Exempt Property?

A few states have laws that exempt pets. If you live in one of those states, you may be able to use the exemption to keep your horses.

Most states don’t have a specific exemption for pets, but many have a wildcard exemption. A wildcard exemption allows you to exempt a certain dollar value of any type of personal property.  Because your horses aren’t worth much, you may be able to use a wildcard exemption to keep them. (To find out if your state has a pet exemption or wildcard exemption, see Bankruptcy Information for Your State.)

Will the Trustee Abandon Your Horses?

Even if you cannot exempt your horses, the trustee may decide to abandon (not take and sell) them. A trustee will do this if your horses have little value, or because it would be too hard for the trustee to sell them.  (Learn more about when a trustee will abandon property in bankruptcy.) In your situation, since your horses aren’t worth much, this is likely to happen.

Keep in mind though, if your horses are valuable (when I say value, I mean market value), the bankruptcy trustee will explore the possibility of selling them.

Are Your Pet Care Expenses Unreasonable? 

When you file for bankruptcy, you fill out a number of forms that contain information about your income, expenses, debts, assets, and recent financial transactions. If the bankruptcy trustee feels that your living expenses (listed on a form called Schedule J) are unreasonable high, he or she may ask the court to dismiss your bankruptcy case. Spending money to care for horses could be an issue if the court thinks that money should go to your creditors.

Here’s what the court is likely to look at:

The cost of maintaining your horses.  The higher the cost, the more likely the court will balk. For example, if you spend $100 per month on pet care, that is unlikely to be questioned. On the other hand, if you regularly spend $1,000 per month caring for your horses, the court is more likely to toss your case.

The amount of your other expenses.  The court is likely to look at your other living expenses as well. If you spend far below average on other things so that you can pay for your horses, that fact will cut in your favor. For example, things like driving a very old, inexpensive car, scrimping on food and utilities, and foregoing any kind of middle class luxury could persuade a trustee to let your case to proceed.

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

U.S. Hits New Low in Treatment of Immigrants

150105potwI’ve always been glad to leave the immigration policy-making to others. When asked for my opinion on what should be done about, say, entry by undocumented immigrants, I’ll shake my head and say I can see both sides of the issue, and there’s no perfect solution.

But the one thing I’ve always said loud and clear is that, whatever the immigration law may be at the time, the U.S. government needs to do a better job at administering it consistently and fairly.

It’s always been a bit spotty in that regard — ask any immigration lawyer. You’ll hear horror stories about clients with great cases who were nevertheless denied the remedy or immigration benefit they applied for, were harassed for documents they couldn’t possibly have, were asked to produce evidence that was wholly irrelevant to their case, or were wrongly accused of lying because the officer seemed to be having a bad day.

But the events of the past year are enough to make one wonder whether U.S. immigration authorities have any regard for the law at all.

First, we’ve got the stories coming in from Artesia and other places processing Central American migrants fleeing violence there. In a damning report by Stephen Manning, he describes hearings at which women and children appeared before an immigration judge with a volunteer attorney by their side only to be told that the lawyer could neither speak to the judge nor to the lawyer’s own client. Last I heard, that’s a violation of the Fifth Amendment right to counsel, and contravenes the laws on asylum, which state that the U.S. shall not return people to a country where they fear persecution.

The U.S. government has simply ignored all this, claiming that the influx of migrants was a “national security threat.” Women and children, many of them from rural areas. Yeah, right.

Then we’ve got the on-again, off-again Executive Order of November 20, 2014 that promised an expansion of the Deferred Action for Childhood Arrivals (DACA) program and a new program called “DAPA” (Deferred Action for Parents of Americans and Lawful Permanent Residents).

On the very eve of when U.S. Citizenship and Immigration Services (USCIS) was to begin accepting applications under the expanded DACA program — by which time many potential applicants had been no doubt gathering documents, consulting with attorneys, and so on — a Texas judge pulled out the rug by issuing an injunction against the order.

Many legal scholars think the judge’s order was overtly political and legally unsound. So wouldn’t you think that, while we wait for the dust to settle, the immigration enforcement authorities would at least hold off on deporting people who might be helped by DAPA or expanded DACA? No!

Immigration and Customs Enforcement (ICE) is going all out to deport them, according to a report by Brianna Lee for the International Business Times (“Immigration Reform: Authorities No Longer Shielding DAPA-Eligible Immigrants From Deportation Cases“). This is despite the fact that anyone eligible for either of these programs obviously has family ties in the U.S., which should put them way down at the bottom of the list of enforcement priorities according to longstanding policies on “prosecutorial discretion.”

Criminals are supposed to be first on ICE’s deportation priority list. That’s why, on the ICE website, it proudly displays photos of ICE officers escorting suspected criminals out of the U.S., as in the photo above (which I’m supposed to tell you is a “Photo Courtesy of ICE”). Funny, I don’t see any photos on the ICE site showing the deportation of women and children.

One hears a lot of complaining from within the U.S. that the migrants from Central America somewhere got the idea that they’d be welcome. Well, the U.S. is certainly disabusing them of that notion. But is it any wonder that the world isn’t clear on what U.S. immigration law actually says, when we can’t seem to agree on it from one week to the next?

Can I Refinance a Mortgage That Was Discharged in Bankruptcy?

Leon Bayer PhotoASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon, 

I filed bankruptcy in 2009. One of the debts discharged in the bankruptcy was a mortgage with Wells Fargo. Upon the advice of my lawyer, I did not reaffirm the mortgage in the bankruptcy. I kept my house, and I have stayed current on my mortgage.

I just asked Wells Fargo to refinance my mortgage at a lower rate. It told me that it cannot refinance the mortgage because I did not affirm the loan in the bankruptcy. It also told me that no bank will refinance the loan, for the same reason.

Should my lawyer have advised me to reaffirm the loan? Is there anything I can do? 

Shirley

 

Dear Shirley,

What Wells Fargo told you is partially right, and partially wrong. If the only issue is that you did not reaffirm the home loan in your bankruptcy, you will be able to refinance your loan with a different lender. Your lawyer was not remiss in advising you not to try to reaffirm the mortgage.

What Is Reaffirmation in Bankruptcy?

Most types of debts are wiped out in Chapter 7 bankruptcy. If you want to keep a particular debt, however, you can reaffirm it. Essentially you sign an agreement with the lender that waives the discharge of the debt. (Learn more about how reaffirmation works in bankruptcy.)

The effect of reaffirming a mortgage is that if you later default on the loan and the lender forecloses, you will be liable for a deficiency (the difference between what you owe and the value of your home). If you don’t reaffirm your mortgage in bankruptcy and later default, the lender cannot go after you for a deficiency. (Learn why reaffirming a mortgage is almost always a bad idea.)

Refinancing a Discharged Loan

If a debt is discharged in bankruptcy, the lender is prohibited from trying to  collect on that debt. The lender cannot sue you, call you, or send you a bill or mortgage statement.

When you refinance a discharged mortgage loan with the same lender who currently holds the mortgage, the proceeds of the refinance go back to that lender to repay the loan balance. This violates the bankruptcy discharge and that’s why Wells Fargo won’t refinance your mortgage. However, this  should not prevent other lenders from refinancing your mortgage.

It’s unfortunate that Wells Fargo was not able to explain the law correctly, or clearly.

Should You Have Reaffirmed Your Mortgage?

But should your lawyer have recommended or tried to get your mortgage reaffirmed? Most likely not.

In bankruptcy, a reaffirmation agreement must be approved by either

  • the bankruptcy judge, or
  • your bankruptcy lawyer.

Bankruptcy court approval. Most bankruptcy judges will not approve mortgage reaffirmations, reasoning that a debtor can keep the house without reaffirming as long as he or she makes timely payments. This makes the reaffirmation an unnecessary liability. Often the only reason in favor of reaffirming is to reestablish a good payment history. (Without a reaffirmation agreement, your future payments probably will not appear on your credit report.) Most bankruptcy judges feel that building future credit is not a sufficient reason to burden a debtor with mortgage liability.

Lawyer approval. If the judge won’t sign off on the reaffirmation, then it won’t be valid unless your lawyer signs a legal declaration stating that the reaffirmed debt will not impose an undue hardship on you or your dependents. Lawyers are very hesitant to sign such a document because they don’t know what their own responsibility will be if you default. Lawyers also reason that if judges won’t sign these agreements, then they shouldn’t either.

The end result: Mortgages are almost never reaffirmed in bankruptcy.

-Leon

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

How Explicit Must a Request for Religious Accommodation Be?

AUS Supreme Courtbercrombie & Fitch is the subject of a religious discrimination lawsuit, after refusing to hire a young Muslim woman who wore a hijab – a religious headscarf – to her interview. In 2008, 17-year-old Samantha Elauf applied for a sales job with the famous retailer at one of its locations in Tulsa, Oklahoma. The store manager thought that Elauf was a good candidate for the position, but wasn’t sure if she could work for the store wearing the hijab. The store manager asked the district manager if a Muslim applicant could wear a hijab at work. The district manager replied that the store could not make any exceptions to its strict “look policy,” which did not permit headwear of any kind. Abercrombie did not discuss the policy with Elauf before rejecting her. The case has made its way up to the United States Supreme Court, which is scheduled to hear oral arguments this Wednesday.

Under Title VII of the Civil Rights Act, it’s clear that employers must provide reasonable accommodations to employees based on their religious beliefs, unless it would create an undue hardship (for more information, see our article on religious accommodation in the workplace). In general, the employee must notify the employer of a need for accommodation before the employer is required to act. But what if the employer knows of the need for accommodation, but the information wasn’t explicitly provided by the employee?

That’s the question that is at the center of this dispute. According to Abercrombie, under Title VII of the Civil Rights Act, the burden is on the applicant to request an accommodation for his or her religious beliefs. Employers are not expected to be mind-readers, and what’s more, employers are not allowed to ask employees about their religious beliefs in interviews.

However, according to EEOC, Abercrombie store managers knew that Elauf wore the hijab for religious reasons, which imposed a duty on Abercrombie to start a discussion about reasonable accommodation. At the very least, Abercrombie should have informed Elauf of the dress code. After all, how would Elauf know to request an accommodation if she was unaware that  headwear was prohibited by company policy?

The Supreme Court’s decision could provide some much needed clarification on just how far employees must go to request religious accommodations. The Court is scheduled to issue a decision in late spring or early summer.