The big news in labor law the past few days has been the NLRB Inspector General report concerning Board member and Republican appointee, Terence Flynn.    Corporate Counsel has an excellent story on the report.  As of Monday, Flynn was adamant that he would not resign.

It appears that Flynn’s status might come down to a funny wrinkle in modern technology: the auto-fill feature in Microsoft Outlook.   The most serious allegation in the IG’s report is that Flynn leaked to former Board Member Peter Schaumber a confidential document on the Board’s new representation rules.   Flynn claims that he did not intentionally send the document to Schaumber, but, instead meant to send it to another “Peter” – Peter Carlton, who serves as his Chief Counsel.   Anybody who has used Outlook has made this mistake, so Flynn’s defense is at least plausible.   However, the IG didn’t buy his story, claiming that he responded to Schaumber’s reply email and thus should have caught the mistake right away.  Instead, Flynn waited almost two weeks before he claimed to have figured out the mishap.

The rest of the IG’s report contains allegations that, if proven, are probable violations of ethics policies – such as emailing old contacts at his law firm about some NLRB procedures.   But in Washington, DC, where government officials frequently stay in touch with “contacts” on the outside and such contacts frequently ask for de minimis favors, one must also wonder if the same types of violations are commonplace at other agencies.

The scandal has labor unions calling for Flynn’s resignation and Democrats on Capitol Hill are promising investigations.  Those are probably not Flynn’s biggest concern though, as the whole matter has been referred to the Justice Department for an investigation as well.     What’s more, Flynn was merely a recess apointment to the Board and needed full Senate confirmation before he could assume his seat on a more permanent basis.   Such confirmation may be problematic given this scandal.

This is the last in a five-part series on addressing issues facing employers in managing the possibly fraudulent use of intermittent leave under the Family and Medical Leave Act (FMLA).  In the last posting, I discussed fitness for duty examinations, which are covered by the FMLA regulations.  Now let’s turn to non-regulatory options for employers.

Attendance Policies

Employees on FMLA leave are still subject to employer policies requiring compliance with notice and call in procedures each time they will be absent, even for FMLA-covered reasons.  Employers may also require employees on FMLA leave to report periodically on their status and intent to return to work while on leave.  29 C.F.R. §§ 825.303; 825.311.  Indeed, one court held that a company policy requiring employees on approved leave to call in each time they left the house could be applied to employees on FMLA leave.  An employee’s failure to follow notice and call in procedures without adequate excuse is grounds for discipline, even of the employee on FMLA.  Courts have upheld terminations of employees on FMLA leave for failure to comply with notice and call-in policies.

Verification and Investigation

While it is clear that an employer cannot require a doctor’s note to support each incidence of intermittent leave, the regulations are silent on the issue of non-medical verification of the actual use of FMLA leave for a serious health condition (e.g. a note from the nursing home when the employee takes FMLA leave to care for a parent at that facility).  While an employee could claim that such a targeted requirement would be an interference with his FMLA rights, such claim would be unlikely to succeed as long as the employee provided the note and received the leave.  If the employee is unable to provide such a note, because he was not actually visiting the nursing home, it is likely that he would not even attempt to assert the claim.  We would not recommend instituting such a verification policy as a matter of course, but restricting verifications to cases involving suspected abuse.

Another option is for the employer to conduct an investigation into the FMLA usage.  Courts have held that an employer who suspects FMLA abuse may take steps to verify whether the employee is actually using the leave appropriately.  This can involve calls to a non-medical entity, such as a nursing home, to confirm that the employee actually visited his parent.  It can also involve the hiring of an investigator to observe the employee’s activities while on leave.

The Wall Street Journal has an excellent story about a new “information campaign” planned by the NLRB that will impact non-union employers.   The goal is to inform all employees about their legal right to take part in “protected concerted activities.”   Indeed, the right to engage in “protected concerted activity” is one aspect of the National Labor Relations Act that applies to employees of both union and non-unionized employers.   In short, two or more employees have a right to complain about their terms and conditions of employment, without retailiation from their employer for doing so.

According to the Journal:

I want workers to know that if they have grievances they have a right under certain circumstances to voice them,” Mr. Pearce [NLRB Chairman] said.

In the next two weeks, the NLRB is set to roll out a Web page explaining “concerted activity” and highlighting cases involving unlawful punishment for it. It also plans pamphlets in English and Spanish that will be distributed through worker-advocacy groups and sister federal agencies, such as the Labor Department. NLRB officials will address the issue in speeches and appearances on radio and television.

Most employers would not object, necessarily, to employees voicing concerns about terms and conditions of work.  In fact, employees complain all the time and are usually not fired for doing so.   The problem is that the current Board has found that certain employee behavior is protected under this doctrine, even when the employee is clearly behaving in an inappropriate manner.  For instance, in a 2010 Labor Board case, Plaza Auto Center, Inc. and Nick Aguirre, Case No. 28-CA-22256 (August 16, 2010), the Board found that the employee was engaging in protected activity even though the employee called the owner of the Company a “F’—–g mother F’——g,” an “F’——- crook,” and “an a–hole” and told him that everyone talked about him, nobody liked him, and that he  was stupid.   He also pushed his chair and told the owner that if he is fired he would “regret” it — a statement which could be interpreted as a thinly veiled threat of violence.

Still, the NLRB found that his comments were protected because before the outburst, the employee was complaining at a meeting about various terms and conditions of employment with other employees.   The Board found that while his outburst was “vehement and profane,” it “did not render him unfit for further service” and was thus protected.

The same issue has come up time and time again in the social media context as employees take to Facebook, Twitter, etc., to write sometimes nasty messages about their working conditions.   But, here, again, the Board has usually found such messages to be protected under the Act.

These cases illustrate the problem with “protected concerted activity” and the Board’s new “information push” — employees can sometimes engage in behavior that no rationale employer should be expected to tolerate, but that still might be protected anyway.    One can imagine that these types of cases might rise with the Labor Board’s new information push on the subject.

In the Journal’s story, Mike Eastman, a good friend from the US Chamber, makes the point that the NLRB is just trying to maintain its relevance in an era of declining union density.   The NLRB disputes that contention.    It certainly helps the NLRB stay active when one of its major pushes now concerns a section of the law that impacts the 94% of private sector employers that are non-union.

The United States Court of Appeals for the Seventh Circuit recently handed down a decision on union handbilling that employers should note (Roundy’s Inc. v. NLRB, Nos. 10-3921 & 11-1292).

The case involved a grocery store chain in Wisconin, Pick ‘N Save.   The chain was using non-union contractors to remodel some of its locations.  This drew the attention of the Milwaukee Building and Construction Trades Council.  After an unsuccessful effort to persuade the company to use organized labor, the Union resorted to handbilling outside of Pick ‘N Save locations.

The handbills:

  • accused the store of using cheap labor to build and remodel stores and not passing those savings on to its customers
  • asked customers not to patronize Pick ‘N Save
  • informed customers that they would achieve savings by shopping at competitor stores
  • pointed out price differences in . . . products with competitors

— and, perhaps the most creative tactic —

  • handed out coupons for competitors

Finally, because it always must make an appearance in these sorts of situations, the Union handed out some leaflets that “pictured a rat to represent the Company.”  As the Court put it rather mildly, these handbills were “unflattering.”   The Company ejected the handbillers.

Under a Supreme Court decision, Lechmere, a property owner has the right to eject “non-employee” union organizers — basically union representatives who are not already your employees.   But this case turned on Pick ‘N Save’s property interest.   Like many grocery store chains,  Pick ‘N Save did not physically own the buildings they occupied — in fact, in some instances, they were located in shopping malls.   Instead, they only had a non-exlcusive “easement” to use the property and surrounding areas.    Easements are non-possessory right in the property of another — so, here, the Company had a right to use the property of the owner.   So, Pick ‘N Save was not a traditional “Lechmere” property owner.   Thus, they could not eject the handbillers under Lechemere.

While easements are different from owning a property outright, every easement carries with it the right to do what is necessary for the full enjoyment of the easement —  if what somebody else is doing to your easement is “unreasonable interference,” you, as the easement holder, can eject them.

Which brings us to the major issue in this case — was the union handbilling an “unreasonable intereference” with Pick ‘N Save’s easement?  The Seventh Circuit said “NO!”  According to the Court:

The ALJ specifically found that the handbillers were engaged in peaceful conduct protected by Section 7, and there is nothing in the record to show that they were disruptive or that customers were inconvenienced or disconcerted by their presence.

Pick ‘N Save — and other employers — might beg to differ.   Having your customers bombarded with handbills like the ones described above at least seems “disruptive” and possibly “inconveniencing” to customers to use the words of the Court.   Nevertheless, that argument did not prevail.

The bottom line for employers: if your property right is dependent upon an easement, excluding union handbillers is difficult, so long as the handbillers do not “cross the line.”  The “line,” so to speak, is hard to figure out, but nasty handbills and coupons for your competitors do not cross it, at least for the Seventh Circuit.

Employers and individuals often seek to call their relationship contractor/independent contractor — not employer/employee.  Courts are increasingly resistant to such artificial designations.  The Federal Court in Maryland, in a lawsuit claiming overtime pay under the Fair Labor Standards Act, ruled on January 18, 2012 that independent contractor status did not apply to an installer of doors, windows, and siding.  In the case of Calle v. Or, Judge Chasanow analyzed the work of an installer who worked approximately 66 hours per week, was regularly supervised by the Employer, and although he brought his own tool belt to work, the Employer provided all large tools and scaffolding necessary to complete the assignments.

 The Court used the following six factor test in determining the “Economic Reality” of the parties rather than what the parties called each other, or upon the installer’s classification as an independent contractor for tax purposes:

  1. Degree of control exercised over the matter in which work is performed – The Employer picked up the installer each morning and drove him to job sites, instructed him regarding the work that he needed to perform that day, and set his work hours.
  2. Opportunities for profit or loss – The installer did not undertake risk of profit and loss usually associated with an independent business.  He was paid a fixed rate for each day and he could not increase profits by obtaining additional work.
  3. Investment in equipment and employment of others – The installer did not employ any other workers, and provided only his tool belt, with the Employer purchasing all other necessary tools, which were more substantial.
  4. Degree of skill required on the job – the Court acknowledged that this factor may weigh in the Employer’s factor since courts previously found that skills employed by construction workers indicate that many are independent contractors.  But, because no single factor is dispositive in determining employment status, this factor alone does not satisfy the independent contractor test.
  5. Working exclusively for Employer for an extended time period – the relative permanence of the working relationship here supported a finding that the installer is an employee where he worked full time and exclusively for the Employer for over three years between 2008 and 2011.
  6. Whether the work performed is integral to the Employer’s business – the installation of doors, windows, and sidings was a critical component of the Employer’s residential construction business.

In summary, five of the six “economic reality” factors indicated that the installer was an employee, not an independent contractor.   The take away is that employers should be aware that plaintiffs’ counsel and governmental agencies have been aggressive lately in challenging the misclassification of purported independent contractors.

Editors Note: This is the latest installment in the Labor & Employment Report’s regular feature “Specialty Healthcare Watch.”   In Speciality Healthcare, the NLRB redefined the test for what constitutes an appropriate bargaining unit.   The Labor & Employment Report is analyzing post-Speciality Healthcare cases to give employers insights on how to apply that holding.   For more information on this case and feature, click here.

In Part One of my Northrop Grumman Shipbuilding analysis, I reviewed the Board’s decision and reasoning.   Today, I will go over Brian Hayes’ dissent.

Member Hayes has had the opportunity to write a lot of dissenting opinions while at the NLRB.   Not to detract from any of his other dissents, but I found the one in Northrop Grumman particularly persuasive.   If you remember from my breakdown of the majority’s opinion, the key is whether the traditional community-of-interest test excludes the larger unit.  Here, Member Hayes goes through how the larger group of technicals and the smaller petition-for group meet the community-of-interest factors.  He compares the RCTs to the other technical employees and finds many similiarities such as:

  • They all work at the same facility
  • They all share the same salary structure and personnel policies
  • They all enjoy the same benefits
  • They all share break facilities
  • Their duties are “functionally integrated” with those of other technical employees

Hayes expounds on this “functional integration” point later in his dissent, finding that the RCTs worked with other technicans at many locations to ensure the safety of the employees at the worksite, a function that was “essential to enable other technicans to perform their work and to fulfull the Employer’s mission.” The integration point is key —  if the positions of the petitioned-for unit and the other technical employees were functionally integrated, it would be hard to argue that the other two bases for exlcuding the larger unit — the training and lack of work contacts — would prevail.   One has to believe that the “job function” point was very close, even for the majority.   But the fact that Hayes’ ultimately loses this argument, shows, again, for employers that in order to prevail in a post Specialty Healthcare case, they must have pretty close to an air-tight argument as to why the traditional community-of-interest test is met between the larger unit and the petitioned-for unit.  If the union can point to any reasons why it is not, then the smaller unit will prevail.

While he lost the battle again, Hayes’ opinion includes highly persuasive dicta about why Specialty Healthcare is such a misguided NLRB decision.   Hayes writes:

The newly-fashioned Speciality Healthcare standard, in contrast, gives the petitioner’s views on unit scope nearly dispositive weight, thereby negating the role Congress envisioned for the Board in determining appropriate bargaining units. In many, if not most instances, this new standard will encourage petitioning for small, single classification and/or single department groups of employees.  Union electoral success, even if at the same rate as in the recent past, will lead to the balkanization of an employer’s unionized workforce, creating an environment of constant negotiation and tension resulting from competing demands of the representatives of numerous micro-units. Such an outcome cannot be reconciled with the statutory goal of facilitating labor relations stability.

Consider the Employer in this case. Its 8500 production and maintenance employees, despite placement in different departments, have been represented by the Steelworkers in a single plantwide unit for more than 30 years. How many separate units would have existed, and with what consequences for productive collective bargaining relations, had the Speciality Healthcare standard been in effect? Further, in the wake of this decision, how many separate technical bargaining units will eventuate among 2400 employees?

A good question, indeed.

Editors Note: This is the latest installment in the Labor & Employment Report’s regular feature “Specialty Healthcare Watch.”   In Speciality Healthcare, the NLRB redefined the test for what constitutes an appropriate bargaining unit.   The Labor & Employment Report is analyzing post-Speciality Healthcare cases to give employers insights on how to apply that holding.   For more information on this case and feature, click here.

The next case applying Speciality Healthcare is Northrop Grumman Shipbuilding, Inc., 357 NLRB No. 163 (2011).   The employer operates a shipyard where it constructs nuclear-powered submarines and aircraft for the Navy.  The Union seeks a bargaining unit comprised of four classifications of employees: 140 Radiological Control Techs (RCTs), 3 Calibration Techs, 20 Laboratory Techs,  and 60 RCT trainees.    On the other hand, the employer wanted a unit comprised of all technical employees — numbering approximately 2400.   This is a classic example of a “wall to wall” unit versus a very small slice of the workforce.

The Board goes into painstaking detail to review what RCTS do — suffice to say they basically track radiation levels and ensure that individual employee radiation exposure remains within safe limits.  They set-up certain control areas to restrict access near nuclear reactors, work sites, etc., and they maintain checkpoints for other employees entering these areas.   They have a comprehensive education requirement, including an orientation at the shipyard, 22 weeks of training with the Navy, 5 more weeks of training back at the shipyard, and then a full-day oral examination.  They also must be “requalified” every 30 months and obtain a confidential security clearance.

As for the other proposed employees, the lab techs work with the RCTS in collecting materials, help calibrate dosimetry equipment used by the RCTs, and screen contaminated materials.  The Calibration Techs maintain and calibrate the equipment used by the RCTs and interact regularly with the RCTs.

Applying Speciality Healthcare, the Board stated that there was no dispute that the petitioned for employees shared a community of interest under the Board’s traditional test.  Thus, the only question was whether the employer’s proposed unit of “all technical employees” share an “overwhelming community of interest” in that “there is no legitimate basis upon which to exclude the employees from the larger unit because the traditional community of interest factors overlap almost completely.”

If you recall my analysis from Odwalla, the Board found that there was no legitimate basis to exclude the employees because, after going through all of the traditional community-of-interest test, there was really no difference between the excluded and included employees.   So the question in Northrop Grumman was whether the traditional community-of-interest test excludes the other technical employees?

Here, the Board said “yes.”   In particular, the Board focused on the job functions of the RCTs versus other technical employees, finding that:

“[T]he RCTs’ job function is to ensure workplace safety and control radioactive contamination at the shipyard, a task distinct from the production oriented jobs of technical employees outside of E85 RADCON. RCTs are therefore not functionally integrated into the production work flow of the shipyard, but instead have an independent oversight role.”

Beyond the job function, the Board found that “work contacts” between RCTs and other employees “are brief” and that RCTs “receive extensive and highly-specialized radiological training.”

Thus, because the traditional community-of-interest factors showed these differences, the Board found that the employer could not meet the overwhelming community-of-interest test and that the smaller unit was appropriate.

An interesting wrinkle comes after the Specialty Healthcare analysis.  The Board stated in Specialty Healthcare that certain industries have “presumptions” and “occupation rules” for bargaining units and that the Board would continue to respect those special rules.  For technical employees, the Board had previously adopted a rule that “when technical employees work in similar jobs and have similar working conditions and benefits, the only appropriate unit for a group of technicals must include all such employees similarly employed.”  TRW Carr Divison, 266 NLRB 326, 326 (1983).  But even in that context, a subset of technical employees share a community of interest when they are “sufficiently distinct” from other technical employees.  Applying that different standard, the Board still reached the same conclusion — that the petitioned unit was appropriate because the “RCTs are alone tasked with independent safety oversight” and thus “sufficiently distinct” from other technicals.

The takeaway for employers:

(1) Just as in Odwalla, in a Specialty Healthcare analysis, you must frame your argument around the traditional community of interest test and why those factors do not exclude the larger unit  Here, the case pretty much came down to job function and there was just enough of a difference between the job functions of the RCTS and all technicals that the smaller unit was valid.

(2) Always look for special bargaining unit rules in a given industry.   While that argument didn’t prevail here,  it is important to remember that Specialty Healthcare did not overrule special rules that might apply in a particular industry and that the Board will consider such rules.

In Part Two of this analysis, I will review Brian Hayes highly persuasive dissent in this case.

Some interesting tidbits of Maryland labor and employment news:

  • According to the Daily Record, Pepsi Bottling Group and a group of employees have settled an overtime compensation case in the U.S. District Court of Maryland.   As part of the settlement, about 60 employees will share an award of $187,275, with attorneys’ fees and administrative costs bringing the total cost of the case to just over $270,000.   The named plaintiff, Avary Lehigh, claimed that for about a year, he performed work “off-the-clock” at the behest of his supervision.   The Daily Record includes an interesting breakdown of the settlement — the $187,275 split between 60 plaintiffs means that each plaintiff walks away with about $3,100 (including a $9000 incentive fee to Mr. Lehigh).   On the other hand, the Plaintiff’s attorneys at Crone & McEvoy make out with $64,273.
  • The Baltimore Business Journal has an interesting story on the hidden costs of ADA regulations.   The regulation in question comes from the Justice Department and requires that all ATM machines be usable by blind people.  Under the regs, ATMs must now have a voice compnent that speaks instructions to blind people and helps guide them through the process of using an ATM.   While the goal is laudable, the compliance costs are enoromous — the cost of replacing an ATM machine is a surprising $30,000 to $60,000.   This is a major cost for small banks, but they have few options — non-compliance can result in a first fine of $55,000, followed by another fine of $110,000, plus the possible exposure to individual ADA lawsuits.   The Journal estimates that the cost nationwide is $500 million dollar for this ADA fix.
  • The Baltimore Sun reports that the Baltimore County Council has tabled a proposal that would have changed pension calculations for county employees represented by AFSCME.  Right now, the County includes overtime pay in pension calculations — undoubtedly resulting in increased pension costs.   The County was poised to change that, but backed down after organized labor mounted heavy pressure.   The controversey underscores the continued tension between pensions found in the public sector — that tend to be very generous and include perks like overtime pay in the pension formula — and “pensions” in the private sector, which are all but extinct (at least traditional pensions; most employers do offer 401Ks and the like).   Estimates differed as to how much money the proposal would have saved, but estimates ranged from $200,000 to $500,000 — not chump change in lean economic times for the County.

This is the next installment in a five-part series offering guidance on how to address the possible fraudulent use of intermittent leave under the Family and Medical Leave Act (FMLA).  In the last posting, I discussed when employers may require recertifications of the serious health condition.  In this posting, we’ll take a look at fitness for duty (FFD) certifications.

Fitness for Duty Certifications

Another mechanism by which employers may attempt to curb intermittent FMLA leave abuse is through fitness for duty (FFD) certifications, which are permitted by the regulations.  29 C.F.R. § 825.312.  An employer may have a uniformly-applied policy or practice that requires all employees on FMLA leave to present certification from a Health Care Provider (HCP) that the employee is able to resume work. 

If the employer wishes to require such FFD certification, it must provide the employee with a list of the essential functions of his/her job at the time that the requisite FMLA Designation Notice is given, and inform the employee in the Designation Notice that the FFD certification must address the employee’s ability to perform those essential job functions.  No second or third opinions are permitted for FFD certifications, although the employer may contact the HCP to clarify or authenticate the FFD certification.

 The regulations specifically address the use of FFD certifications with regard to intermittent leave.  An employer may not require a FFD certification for each intermittent leave absence.  The employer is entitled to require an FFD certification once every 30 days, however, if there are reasonable safety concerns regarding the employee’s ability to perform his/her duties, based on the employee’s serious health condition. 

Reasonable safety concerns are defined by the regulations as “a reasonable belief of significant risk of harm to the individual employee or others.”  In making the determination as to whether reasonable safety concerns exist, the “employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur.” 

The DOL’s comments to the revised regulations provide examples of intermittent leave situations when a reasonable safety concern exists or fails to exist:

         Exists

  • A delivery person who must lift heavy articles and has a back condition that limits his ability to lift.
  • An air traffic controller with high blood pressure .
  • A roofer suffering from panic attacks.

        Does Not Exist

  • An office worker with periodic seizures.
  • A cashier suffering from migraines.

If the employer is going to request FFD certifications for an employee on intermittent leave, the initial Designation Notice should include the information that for each subsequent instance of intermittent leave, the employee will be required to submit an FFD certification unless such certification has been supplied within the past 30 days.

An employer who receives an FFD certification may not require the employee to submit to another FFD examination by its own HCP.  Under the ADA, however, once the employee returns to work, if the employer has concerns about the employee’s ability to perform his/her job, the employer may require the employee to undergo another (non-FMLA-related) medical examination, as long as such examination is job-related and consistent with business necessity.

Next time, we’ll take a look at non-regulatory options for employers to address potential FMLA intermittent leave abuse.

BREAKING NEWS:

The Supreme Court handed down a FMLA decision with Maryland roots today, Coleman v. Court of Appeals of Maryland.   The Court found  that the Family Medical Leave Act did not abrogate state soverign immunity for self-care claims.

The issue in Coleman:  States have soverign immunity from lawsuits unless Congress specifically abrogates that immunity with its power to do so under the 14th Amendment.   The abrogation must meet two tests: first, it must be “unmistakable” and then it must be “congruent and proprotional” to an injury under the 14th amendment.   The 14th amendment’s substantive provisions in this context are mainly related to discrimination, so the abrogation of state soverign immunity usually must be related to some type of discrimination.

Bringing us to Mr. Coleman,  he worked for the Maryland Court of Appeals — a state with soverign immunity.   He claimed that the Court of Appeals violated his right to self-care leave under the FMLA and that Congress abrogated Maryland’s soverign immunity under the Act.   There was no doubt that the abrogation met the first test — it was unmistakable that Congress meant for the FMLA to apply to state government bodies like the Maryland Court of Appeals.    But the Court found that the second part of the abrogation test was not met — in that the abrogation was not “congruent and proportional” to the 14th Amendment.   Coleman had argued that the self-care provision helps single parents, who are disproportionially female — a protected class under the 14th Amendment.   But the Court rejected that argument, finding that the FMLA’s self-care provisions were aimed at “neutral leave policies” and that even if  disparate impact was found, it was not “sufficient evidence” of discrimination itself.

Likewise, the Court rejected Coleman’s argument that the self-care provision was originally directed at sex-sterotyping.  Here it seems that Coleman rested his argument on the fact that the self-care provision is usually used by pregnant women.  But the Court found:

Although the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses, the provision, as a remedy, is not congruent and proportional to any identified constitutional violations. When the FMLA was enacted, Congress had no evidence that States were excluding pregnancy-related illnesses from their leave policies.

Finally, the Court found no evidence that the self-care provision was a “necessary-adjunct” to the family-care provision.  Coleman undoubtedly tried to link the self-care and family care provisions because the Supreme Court, previsouly, found that the FMLA family-care provisions did abrogate state soverign immunity.   But the “family-care” provisions had roots in sex discrimination (i.e. better leave policies for men) and thus met the 14th amendment “congruent and proportionality” requirement.