Nevada FMLA case goes to Supreme Court

A court case involving the state of Nevada and a former state employee will be argued this week before the United States Supreme Court.

The case involves the Family Medical Leave Act, which says an employer must give an employee 12 weeks of leave to care for a family member.

But the suit is not about whether the Nevada employee received adequate leave as granted by law, but rather whether a state, like a private employer, can be sued over the act.

The origins of the case go back six years to April 1997, when William Hibbs, an employee of the Nevada Department of Human Resources, Welfare Division, requested leave to care for his wife who had suffered injuries in a car accident.

According to a brief filed by the state with the U.S.

Supreme Court, Hibbs requested and received 480 hours leave as required by the FMLA.

He then took another 380 hours of "catastrophic leave" donated by other employees of the state.

In October, when he didn't return to work, the state started disciplinary action against him that led to termination of his employment in December.

Hibbs then sued the state human resources department in federal court saying it had not granted him the leave mandated by FMLA.

In June 1999, Judge McKibbon, who heard the case in the U.S.

District Court in Reno, ruled that Hibbs' claim was barred by the 11th Amendment of the U.S.

Constitution, which says that states are sovereign and immune from such lawsuits.

There are exceptions: under the equal protection clause of the 14th Amendment states can be sued if there is proof of a pattern of discrimination.

But McKibbon said that provision did not apply to the FMLA.

The case was then appealed to the 9th Circuit Court in San Francisco, where it was reversed because the court majority found that the FMLA is designed to combat gender discrimination and therefore does fall under the equal protection clause of the 14th Amendment.

In its decision, the court said that other circuit courts had found other wise and that discrepancy is the main reason the case is making it all the way to the Supreme Court, according to Paul Taggart, the deputy attorney general who will be arguing the case for Nevada.

"One big reason the Supreme Court granted certiorari is because of the conflict among the circuits," said Taggart.

Taggart said the 9th circuit is known for its controversial decisions.

"It's the circuit that ruled that it's unconstitutional to say the pledge of allegiance," said Taggart.

Seven other circuits there are 11 nationwide agreed with Nevada's claim that, as a state, it is immune from FMLA lawsuits.

That doesn't mean the state doesn't comply with the intent of the law, said Taggart.

"We're accused of taking on the FMLA," said Taggart.

"We have similar state laws.

All this is about whether the states can be sued." The Supreme Court, in two recent decisions, said the states could not be sued over either the Age Discrimination in Employment Act or the American with Disabilities Act, said Taggart.

The case will be heard this Wednesday, for just an hour, between 11 a.m.

and noon.

Taggart, representing the state of Nevada, will argue first and for the first time before the Supreme Court.

"I'm excited.

It's a great opportunity," said Taggart.

"And it's an important case." He said he will likely speak very briefly and spend the rest of his half hour answering questions.

"This is a very active court," he said.

"Almost every justice will ask questions." Then an attorney for the federal government and an attorney for Hibbs will each present for 15 minutes.

The court, which hears and decides 85 cases a year, will rule on the case by June.