*1 tion in BOEs to set their own hours. Id. v. Crosswinds Com- of discretion.” Chirco (6th 5851). munities, Inc., (Page Cir. at 4 ID # At in stage 474 F.3d this omitted). 2007) (internal marks quotation litigation, only days early until explained not how Plain- begin, Defendants have voting having is set and found quickly produced more tiffs could have all four in weigh factors favor of in in this case injunc- record evidence granting preliminary voluminous Plaintiffs a preliminary tion, for a support of their motion argument we do not address this at produced injunction, nor have Defendants this time. purposefully evidence that Plaintiffs the dis- delayed. therefore find that We III. CONCLUSION in court did not abuse its discretion
trict that Defendants determining “ha[d] reasons, foregoing For the we AFFIRM diligence” by ... a lack of Plaintiffs shown judgment granting the district court’s injunc- promptly preliminary to move injunction. preliminary (D. 6) Op. tion. R. 72 Ct. and Order 5853). ID # (Page Remedy
F. The District Court’s in suggest paragraph
Defendants one appeal
their brief on the district injunction might preliminary
court’s itself by al- Equal
violate the Protection Clause
lowing voting BOEs to set EIP hours prelimi- to those set forth in the addition SHERFEL, fiduciary capac- in her Joan nary injunction order Directive 2014- ity member Ad- as a Benefits might unequal set EIP 17 because BOEs Committee, Plan Admin- ministrative Br. at 28-29. voting Appellants hours. Nationwide-Sponsored istrator of the argument appears implicate This issues Employee Bene- Health Welfare fully devel- of state law have not been Plans; fit Benefits Administrative oped appeal. on The Ohio Revised Code Committee, Plan Administrator authorizes to set their own EIP BOEs Nationwide-Sponsored Health voting hours. Ohio Rev.Code Plans; Employee Benefit Na- Welfare 3501.10(b), §§ district 3501.11. Company, tionwide Mutual Insurance remedy to expressly court’s order ties its Plaintiffs-Appellees, already permitted under law: what is Ohio “Secretary enjoined pre- Husted is from venting county individual Boards of Elec- NEWSON, Secretary, Depart- Reggie by majority vote adopting,
tion from Development, ment of Workforce their members and in accordance Wisconsin, in his official ca- established Ohio election State of procedures Handrick, law,” pacity; Joseph Administra- R. 72 voting additional EIP hours. 71) Division, (D. Equal Rights Op. (Page ID tor of Ct. Order added). 5918) Department of Workforce (emphasis party # Neither capacity; Development, in his official directly Secretary addressed Husted’s has Hollen, Attorney General, voting EIP authority impose uniform J.B. Van Wisconsin, official ca- his despite provisions horns Ohio State Defendants-Appellants. pacity, discre- appear Revised Code that to vest *2 12-4285. No. Appeals, Court of
United States Circuit.
Sixth
Argued: Oct. 2013. Sept.
Decided and Filed:
Stranch, Judge, opinion Circuit filed
concurring part dissenting part. *3 LLP, Darch, Chica-
A. Baker & Mckenzie Illinois, for Amici Curiae. go, COLE, Judge; Before: Chief STRANCH, KETHLEDGE and Circuit Judges.
KETHLEDGE, J., opinion delivered the C.J., court, COLE, joined, in which STRANCH, J., joined part. STRANCH, 571-80), (pp. delivered J. concurring part separate opinion *4 dissenting part.
OPINION KETHLEDGE, Judge. Circuit unique a in its ERISA is statute an preemptive effect. The statute includes express preemption state law clause— any employee benefit “relate[s] broadly plan” preempted is so —which strug Supreme worded that the Court has scope. around its gled to draw boundaries impli preempts The statute also pre edly, through the doctrine of conflict emption. That doctrine invalidates state they “pur laws to the extent obstruct laws; Moriarty, poses objectives” of federal ARGUED: Richard Briles Justice, pur Madi- hence the broader a federal statute’s Department of son, Wisconsin, Appellants. pose, implied-preemptive Daniel the broader its for Srsic, Mendelson, P.C., among scope. purpose Littler Colum- ERISA’s W. broadest, broadest, bus, Ohio, recognized if not the Appellees. for ON BRIEF: Moriarty, by purpose Richard De- Court: “The Briles Justice, Madison, Wisconsin, regulatory a partment provide ERISA is to uniform Srsic, Aet Appellants. regime plans.” Daniel Littler over benefit W. Columbus, Davila, Mendelson, P.C., Ohio, Ap- na Health Inc. v. U.S. Crawford, 208, 124 pellees. Sarah C. National ERISA, Families, Thus, express for Women & Partnership D.C., Leiwant, Sherry A are so broad as to Washington, implied converging fields of Family overlap, laying down Better Balance: Work Center, York, York, intensity greatest upon Legal New Jen- fire whose New Reisch, Advocates, by a state law Equal Rights single point: A. the one held nifer Francisco, California, Saks, purports payment to mandate the San Richard of an Working contrary benefits terms 9T05 National Association Of Women, Milwaukee, Wisconsin, Douglas plan. An can receive Your on which the Wiscon- benefits. ground
That is the personal for a Leave Act finds Time bеnefits number Family and Medical sin reasons, such as vacation or illness. In The terms of Nationwide’s here. itself contrast, benefits, to receive STD or extend across LTD plan, participants whose States, pay an must be administrator “STD Disabled” allow its by “LTD as disability” only plan. to Na- Disabled” defined “short-term “a change as short- STD Disabled means substantial employees qualify tionwide who plan. physical in medical or condition due to a by as defined term disabled limitation, by prevents Eligible specific then federalizes that illness working posi- pay administrator to benefits Associate from their current requiring the Specific govern maternity in “the and tion.” rules only prescribed documents days 29 leave. The first five materni- governing plan[.]” instruments 1104(a)(1)(D). ty come out of an Your But the Wisconsin associate’s U.S.C. Thereafter, Act, recently to Nationwide Time benefits. new mother Department of is considered STD Disabled—and thus en- the Wisconsin Workforce (the Depart- titled to STD benefits —for six weeks fol- Development ‘Workforce ment”), lowing vaginal delivery, eight administrator to weeks rеquires disability following benefits to cer- a cesarean section. pay short-term undisputedly are not tain beneficiaries who Family Medical Leave Act Wisconsin’s *5 by plan. disabled as defined the short-term requires employers allow their em- therefore, beneficiaries, those the As to unpaid following six weeks of leave ployees has choices: violate the administrator two employee’s of an natural birth “[t]he Act, The or violate ERISA. Wisconsin 103.10(3). Critically Wis. Stat. child[.]” that, Suprem- the district court held under purposes, for our the Act’s “substitution Constitution, the acy of the federal Clause provision” requires employers to allow an required comply was to administrator employee “paid unpaid to substitute rather than the Act. We Wisconsin type provided by other the leave of and affirm. agree, employer” unpaid provided for the leave 103.10(5)(b). by the statute. Id. As re- I. cently applied by Depart- the Workforce 32,000 ment, example, employee a Nationwide employees has across Nationwide paid maternity the six weеks of country. plan, the Pursuant to an ERISA could take provided by plan, the and then sub- company employees offers its certain leave they leave from stitute an additional three weeks STD income benefits while take by unpaid Administrative Com- for the work. The Benefits benefits many Act—even if the plan. Among employee mittee administers the Wisconsin longer no short-term disabled as defined things, other the Committee determines by plan. Id. whether an is entitled benefits terms; so, and if plan’s under the employ- If an believes that her those out of a pays Committee benefits Act, can file a violated the she er has plan the Committee from trust. The bars Department, complaint with the Workforce doing out of the trust if so paying benefits empowered hearing to hold a which plan’s would violate the terms. violation, in- remedy “take action family leave cluding providing requested provides types three of bene- The 103.10(12). (“STD”), The or medical Id. disability long- leave[.]” fits: short-term bring also a state-law civil (“LTD”), ‘Your Time” can disability term sought to clari- point At that Nationwide circuit сourt once in action Wisconsin fy obligations done. Id. its under federal Wis- action administrative 103.10(13). filed Specifically, Nationwide consin law. district court this lawsuit federal complaint in faced such a Nationwide (where headquarters its is locat- Columbus employees, 2007, after one of its Wisconsin ed), that ERISA seeking a declaration Gerum, baby. She re- Katharina had Act to the extent preempted the Wisconsin in accor- ceived six weeks of STD requires payment the Act of STD benefits Gerum plan. Nationwide’s dance with disabled employees who are not STD period of an additional requested then plan. of Nationwide’s the terms to the Wisconsin pursuant STD benefits injunction sought Nationwide also The Commit- provision. Act’s substitution notably thorough opinion, In that effect. request ground on the tee denied Gerum’s that, the district court held longer short-term disabled that she was no require payment against Nationwide plan. Gerum thereafter as defined complaint contrary to Nationwide’s filed an administrative STD benefits claiming that the Department, plan, expressly Act was Workforce required pay Act Nationwide to preempted in several different impliedly benefits that she re- the additional STD granted court therefore Na- ways. The time, the Wisconsin Su- quested. By requested the relief it and en- tionwide that, in already had held its preme Court judgment tered its favor.
view,
preempt
ERISA did
Wiscon-
appeal
This
followed.
applied to the administra-
sin Act even as
plans. See Aurora Med.
tion of ERISA
II.
Dev., Equal
Grp.
Dep’t
of Workforce
Div.,
612 N.W.2d
Rights
236 Wis.2d
A.
noted, in
Department
also
claim, that a
*6
investigation
its
of Gerum’s
begin
question
wheth
We
specifically
circuit court had
Wisconsin
Act,
applied
as
er the Wisconsin
Nation
disability-plan benefits are avail-
held that
plan,
expressly preempted.
wide’s
under the
able for substitution
Wisconsin
express-preemption
ERISA’s
Dep’t
Act. See
Mut.
Ins. Co. v.
N.W.
that,
exceptions
states
certain
with
Life
Indus., Labor,
Relations,
& Human
No.
(e.g.,
reg
relevant here
for state laws that
1995).
16,
(Wis.Cir.Ct., Jan.
94-CV-001022
insurance),
supersede
ulate
ERISA “shall
thus concluded that there
Department
they may
and all State laws insofar as
that Nation-
probable
was
cause
believe
any employee
now or hereafter relate to
violated the
wide’s denial of STD benefits
1144(a).
§
plan[.]”
benefit
29 U.S.C.
Act. The
then com-
Department
Wisconsin
Congress meant for this section “to ensure
proceeding
an
menced
administrative
plan
be
plans
sponsors
would
Eventually, an ad-
against Nationwide.
subject
body
a uniform
of benefits
judge
that Nation-
held
ministrative
McClendon,
Ingersoll-Rand
v.
law[.]”
Co.
when,
had violated the
Act
wide
142,
478,
133,
112
498 U.S.
111 S.Ct.
plan, it de-
per the terms of Nationwide’s
L.Ed.2d 474
(ie.,
pay
clined to
the additional
more than
to” an
A state law
already paid)
“relate[s]
it
the six weeks
had
STD
meaning
plan,
ERISA
within
The ALJ thus ordered
benefits Gerum.
1144(a),
if the
law “has a connec
state
pay
Nationwide to
her the additional bene-
plan.”
or reference to such a
fits.
tion with
Breiner,
Second,
the Act interferes with
Egelhoff
ex rel.
uni
Egelhoff
147,
1322,
form administration of
141,
plan
149 L.Ed.2d
Nationwide’s
121 S.Ct.
U.S.
(internal
in the 49
it
operates.
states where
State
marks omit-
quotation
they subject
have this
ted).
laws
effect when
a connection or
laws have such
State
“to
plans
legal obligations
different
in dif
preempted—
reference —and are therefore
ferent States.” Id. The
Act
has
(i)
if,
they
among
things,
“mandate[ ]
other
here,
requires
that effect
since it
the plan
structures[,]” N.Y.
employee benefit
State
(ie.,
to pay
administrator
benefits
STD
Blue Cross & Blue Shield
Conference of
employees
benefits to Wisconsin
who are
Co.,
645,
v. Travelers Ins.
514 U.S.
Plans
disabled)
not short-term
that the plan it
S.Ct.
paying
self bars
administrator from
(ii)
(1995);
nationally
uni-
]
“interfere!
other States. The Wisconsin Act there
administration!,]” Egelhoff, 532
plan
form
“impose[s] precisely
fore
the burden that
(iii)
1322;
at
create
U.S.
pre-emption
ERISA
was
intended to
“alternative enforcement mechanisms” for
(internal
avoid!,]”
150,121
id. at
S.Ct. 1322
recovery
of benefits
under
omitted);
quotation marks
and for that
Travelers,
at
plan.
U.S.
expressly preempted
ap
reason too is
plied here.
Act,
The Wisconsin
Third,
the Wisconsin Act cre
require
payment
of STD benefits con
ates an alternate enforcement mechanism
trary
plan,
to the terms of Nationwide’s
obtaining
plаn
for
benefits. “Con
First,
things.
does all three of these
state
gress intended” ERISA’s civil-enforcement
struc
“employee
laws mandate
benefit
1132(a),
provision, 29
“to be the
U.S.C.
when,
things, they re
among
tures”
other
remedy
rights guaranteed
un
exclusive
quire plan
“pay
administrators to
Ingersoll-Rand,
der
498 U.S.
ERISA[.]”
law,
to the beneficiaries
chosen
violates the other —and thus the Act is
Nothing
shall be construed
[ERISA]
preempted to that extent.
alter, amend,
invalidate, im-
modify,
purposes
The Act also оbstructs the “full
*8
any
pair,
supersede
or
law of the United
objectives”
of ERISA. As shown
(except
provided
as
in sections
States
above,
nationally
the Act “interferes with
1137(b)
title)
any
or
rule
1031 and
of this
administration[,]”
148,
uniform
id.
regulation
any
or
such law.
issued
1322,
the “careful ba-
upsets
S.Ct.
to cite in
by
comprehensive
provision
struck
This
curious one
ERISA’s
lanc[e]”
Act,
it
remedy,
defense of the Wisconsin
since
saves
and exclusive civil-enforcement
by any
rather
than state ones
ished
collective
only
bargaining agree-
federal laws
preemption.
from
But Wisconsin contends
any employment
program
ment or
benefit
Act,
added).
as
preemption
that
of Wisconsin
plan.” (Emphasis
Again,
or
“this
here,
impair
would
the Federal
applied
FMLA,
unambiguously
Act” refers
(FMLA),
Family and Medical Leave Act
2652(b)
Act;
§
not the
and thus
2601,
§
That
seq.
29 U.S.C.
et
assertion
nothing
does
to save the Wisconsin Act
curious,
undisput-
too is
since the FMLA
argument
from diminution. Wisconsin’s
edly does not mandate the substitution of
that federal law somehow saves the Wis-
employer-provided
way
leave benefits
therefore,
prеemption,
consin Act from
has
Thus,
the Wisconsin Act does.
the Wis-
in any provision
no basis
of the United
prohibits
per-
consin Act
what the FMLA
States Code.
(¿a,
mits
of employer-
non-substitution
argues
Wisconsin thus
that
Act
its
benefits);
Supreme
and the
by legislative history
namely,
saved
us,
already
yet
Court has
told
another
alone—
two sentences from a Senate Report and a
case,
preemption
fail to
“[w]e
putative colloquy
three
between
Senators.
impaired by
see how federal law would be
history,
That
says,
shows that
of a
preemption
prohibiting
state law
con-
purpose
one
of the FMLA was to encour-
permitted.”
duct that federal law
v.
Shaw
age states to
Lines,
gen-
mandate benefits more
Inc.,
85,
Delta Air
463 U.S.
103-
(1983).
by
erous than those mandated
FMLA
103 S.Ct.
Nor,
history helps
explain
meaning
contrary
sug
to Wisconsin’s
2652(b)
genu
purpose
whose text
gestion, does
of the FMLA have
inely ambiguous.
Allapattah,
See
That
application
provision pro
here.
above,
2611. As
rights
vides in full:
shown
“The
established for
however,
here;
ambiguity
no
employees
under this Act or
amend
there is
ment made
this Act shall not be dimin- otherwise the text of the FMLA does
*9
makes it clear that state and
statutory
enacted]
that Wiscon-
value
establish
providing greater
rights
local laws
leave
sin asks us to enforce.
are not
provided
[the FMLA]
than those
has to do with the
The third reason
any
preempted by the bill or
other federal
The
of
materials themselves.
quality
103-3,
(1993), 1993
S.Rep. No.
at 38
law.”
exchange
colloquy is
purportedly
2651(b)
40. But
does
U.S.C.C.A.N.
(both
Kohl
Feingold and
between Senators
say anything
preemption by
about
oth-
time),
at the
on
representing Wisconsin
statutes, since it reiterates four
er federal
(the
hand,
Sen-
and Senator Dodd
the one
only
times that
it saves state law
from
FMLA), on the other.
sponsor
ate
(“this Act”) it-
preemption by the FMLA
ask,
it
each
“[i]s
The Wisconsin Senators
it
Report agrees
self. The House
with us:
sponsors
of’ the FMLA
the intent of
includes the same sentence without
preempt
not”
the sub-
that ERISA “shall
law[,]”
“any
reference to
other federal
Act;
stitution
of the Wisconsin
103-8(1),at
H.R.Rep. No.
—which
duly
in each instance
and Senator Dodd
say
Report
is to
that
the House
reads
(1993).
Rec. 2254
yes.
Cong.
answers
2651(b)
says.
mean what it
passed
ever
colloquy
But the idea that this
is an obvious fic-
The other sentence from the Senate Re-
lips
of
Senator
(which
omits,
get
port
Report
inserted
the House
to its
Colloquies
tion.
of this sort
credit)
401(b)
time,
clari-
Congressional Record all the
is that
also
“[s]ection
into the
lobbyist;
that
at least as
usually
request
at the
fies
laws
virtually
colloquy,
generous
with ver-
as that [sic]
[the
here
same
phrasing,
(including
provide
much of the same stilted
leave laws that
FMLA]
batim
appeared
Congressional
in the
Record two continuation of health insurance or other
leave),
before,
benefits,
years
prede-
preempt-
in connection with a
are not
by ERISA,
cessor bill that the President vetoed. See
ed
other federal law.”
25,019-20
103-3,
above,
Cong.
S.Rep.
As
Rec.
No.
shown
2651(b)
however, §
principal
says nothing
difference
the two collo-
about
between
law”;
quies
assigns
“any
that the later onе
to Sena- ERISA or
other federal
in-
(who
elected)
2651(b)
Feingold
just
only
tor
had
been
stead
refers
to the FMLA.
questions
Report
pur-
some of the
that Senator Kohl is This sentence from the
thus
2651(b)
Thus,
ports
rather
than
shown to ask
the earlier one.
to rewrite
colloquy,
reasonably
clarify
from the 1993
one can
it. The
Court has warned
conclude, most,
against relying upon precisely
that the
Sen- us
this kind
sought
protect
legislative history.
Allapattah,
ators
their State’s Act
See
(“committee
ERISA,
by
from
Sen- U.S. at
571 literally offers no answer to the reasons the Wis- as set forth in Supreme dozens of conflict-preempted applied Act is consin Court cases. The lawful result in this case above, applied, here. So as shown is to hold the preempted Wisconsin Act imposes conflicting Act obli- requires extent it Nationwide’s admin- gations plan on the Nationwide administra- pay istrator to contrary STD benefits tor, nationally plan interferes with uniform the terms of plan. Nationwide’s administration, renders ERISA’s exclusive C. non-exclusive, remedy
enforcement and in- jects into an (regulation state law area That conclusion is dispositive ap- of this plans) Supreme peal: ERISA benefit the district balancing court’s of the “exclusively has injunctive Court said federal four-factor test for relief was Davila, reasonаble, concern.” 542 U.S. at otherwise see Jolivette v. (internal Husted, (6th quotation Cir.2012); S.Ct. 2488 marks omit- 694 F.3d ted). Thus, Supreme Court’s observa- and the defendants are not entitled to im- in preemption appo- munity tions another case are under the Eleventh Amendment site here: plaintiffs because the requested, and the awarded, only district court prospective, event,
Why, Congress would injunctive relief. Dep’t See Diaz v. Mich. ordinary have wanted pre-emption prin- Corr., (6th Cir.2013). 703 F.3d ciples apply where actual conflict of objective with federal is at stake? principle
Some such is needed. In its The district judgment court’s is af- absence, impose legal state law could firmed. directly duties that would conflict STRANCH, Judge, concurring Circuit regulatory
federal mandates.... To the part dissenting in part. interpretation extent that such an saving provision particular reads into a Congress Employee understood that the federal law toleration of a conflict that (ERISA), Security Retirement Income Act forbid, principles those would otherwise Family and Medical Leаve Act it permits that law to defeat its own (FMLA), and similar state leave laws like objectives, potentially, as the Court Family the Wisconsin and Medical Leave before, put has it “destroy itself.” (WFMLA) separate comple- Act serve but Co., Inc., mentary in governing employment Geier v. Am. Honda Motor roles 861, 871-72, By honoring leave. the distinction U.S. 120 S.Ct. be- (2000) (quoting types L.Ed.2d 914 AT T tween accrued leave and other & Co. v. Tel, Inc., 214, 228, benefits, Cent. of non-accrued like short-term Office (1998)). benefits, long-term disability these federal and state statutes have Our conclusion is the same as the co-existed nearly twenty-five years, serving each Court’s Geier. the federal statute does particular purpose. not tolerate sort its The distinctions I this of conflict with state preserve draw here that balance and law. allow these intertwined statutes continue to basis, therefore, We have no to conclude separate serve their functions. Act, that preemption of the Wisconsin here, impair would claim brought FMLA. The ERISA every And type plan— we have reason to conclude that based on a common of ERISA non-preemption impair would ERISA —no- one includes number of different 1144(a) tably objectives and the including statute’s benefits within one —here (5)(a). 103.10(3)(b)(l) vacation, & child. Wis. Stat. (covering Benefits Your Time *11 time), permits short-term disabil- an em- specifically The personal sick and WFMLA (LTD). (STD) disability long-term ity rights with provide “employees to ployer specifically before us challenge The family gener- ... which are more leave leave with unpaid of WFMLA substitution 103.10(2)(a), employee,” to the ous challenge, there- The benefits. paid STD substitute, may in addition “[a]n fore, issue—whether a narrow presents leave[,] family paid ... portions for of un- the substitution preempts any by unpaid type provided leave of other leave with STD paid WFMLA 103.10(5)(b). The employer,” the Wis- Plan when employer’s ERISA under the Develop- Department consin Workforce the longer no meets requesting employee clarify regulation promulgated ment disability. The issue Plan’s definition of statutory provision substitution what the the intersection of thus arises at before us type provid- other by means “leave and ERISA. state law Wisconsin regulation pro- by employer.” ed the The through the narrow Viewing this case an option employee, “At the of the vides: I hold that ERISA presented, lens would ... leave un- employee entitled preempt the WFMLA expressly does not substitute, may for leave der the act provi- because substitution act, any paid other requested under the plan by to an ERISA sion does not relate the unpaid leave which has accrued to with, to, plan. the or connection reference employee.” Wis. Admin. Code DWD Further, provision is not the substitution 225.03(1) added). (emphasis the statute conflict-preempted because regulation a state does not establish lacking guidance not as to We are impossible makes it for Nationwide type provided by employ- of leave the what ERISA law and state law at comply with by is authorized for substitution the er To the extent a the same time. Wisconsin twenty years ago, More than WFMLA. seeks to utilize the administra- explained the Wisconsin Court process Department tive of the Wisconsin meaning phrase of the “leave which Development to obtain STD Workforce employee.” accrued to the In Rich- has Plan, benefits under Nationwide’s ERISA In- Department land School District v. however, process preempted Labor, Relations, 174 dustry, and Human because it establishes an under ERISA (1993), 498 N.W.2d Wis.2d mechanism barred alternative enforcement regula- court concluded that the state this, I concur by ERISA. On interpreted statutory properly tion majority. phrase provided by employ- “leave ... disagree I explain To where with the “any type er” to mean of leave that has begin I must majority opinion, ” n. employee. accrued to the Id. at 832 & ap- and describe how WFMLA Wisconsin Only the kinds of leave that interpreted courts have that stat- pellate employee accumulates over time “are explanations courts’ ute. Those Id. at 832. available substitution.” statutory mechanism shine much-needed “Leave which is indefinite or which cannot analysis. light on the ERISA quantified
be
at the time of the FMLA
under
A.
of Leave
Substitution
...
request
‘leave
WMFLA
FMLA.” Id. The
employеr’
[the]
Supreme Court has thus distin-
an un-
employees may take
“indefinite,
incalculable leave”
paid
guished
leave of absence for the birth of
specified,
leave that “accrues into
order for such leave to
from
be available for
Only
calculable amounts of time.” Id.
substitution under the FMLA.” Id. at 462
n.
may
granted
latter
be substituted
leave re-
6. Because a CBA
plaintiff
quested
under the WFMLA.
952 hours of
reserve sick leave that
“clearly
was
definite
quantifiable,”
Richland School Dis-
court ruled that it did not need to “inter-
eighteen
trict asked to substitute
calcula-
pret the CBA in order to determine that
days that had accrued to him under a
ble
paid leave
[her]
had accrued to her and
(CBA).
bargaining agreement
collective
*12
was
type
the
of leave available for substi-
Although
Id. at
the school dis-
tution under the FMLA.” Id. at 467. Ac-
argued
trict
that the CBA’s conditions for
cordingly,
plaintiffs
the
claim was not
satisfied,
using the leave were not
the
preempted by § 301 of the
Manage-
Labor
Supreme
Wisconsin
Court concluded that
ment Relations Act. Id.
sufficiently
the leave wаs
definite and
Foods,
quantifiable
unpaid
to be substituted for
In
Inc. v. Wisconsin De-
Kraft
leave, specifically noting
partment
WFMLA
that the
Development, 242
of Workforce
(Wis.Ct.
employee
asking
“was not
to substitute Wis.2d
625 N.W.2d
non-accrued,
any
discretionary
form of
App.2001),
the issue was whether a sick
contingent leave time which the school dis-
leave benefit under a CBA constituted ac-
might give
upon request.”
trict
him
Id. at
paid
crued
leave that could be substituted
emphasized
832-33. The court
that
family
the
for
leave under the WFMLA substi-
103.10(5)(b).
legislature
provision, §
intended to restrict
tution
The state
substitution
agency
under the WFMLA to circum-
that
determined
leave is accrued
employee
stances
which the
“has ac- within the meaning of Wis. Admin. Code
contract,
crued reimbursable leave.” Id. at 836. DWD 225.03 if “it arises from a
103.10(5)(b)
Thus, §
oppor-
specified
quantifiable,
“increases the
and
has a ‘draw-
feature,
tunities
a
employe[e]
to use exist-
down’
type
and is the
of leave that
leave,
ing
paid
accrued
opposed
to cre-
an
is allowed to accumulate over
Foods, Inc.,
аting
additional
leave.” Id.
time.”
N.W.2d
Kraft
663. The CBA’s sick leave benefit met the
In
Brewing Company Depart-
Miller
criteria,
agency
so the
that
ruled
Industry,
ment
Labor and Human Re-
claimant could substitute
accrued sick
lations,
Wis.2d
N.W.2d
unpaid
leave under the CBA for
WFMLA
(1997),
the Wisconsin
Court
leave. Id.
prove
outlined what an
must
establish a violation of the
Appeals
WFMLA sub-
Court of
con-
103.10(5)(b).
provision,
stitution
A
agency reasonably
cluded that
inter-
“(1)
plaintiff
“accrued,”
must show that:
preted
she was
the term
covered
the FMLA at the time
noting
she
that the amount of sick leave was
(2)
leave;
requested
requested
she
specified
quantifiable,
sub-
the benefit had
(3)
leave;
feature,
employ-
stitution for
a draw-down
[the
the sick leave
type
requested;
of leave
er]
accumulated over time.
Id. at 663-64.
(4)
that,
Significantly,
the substituted leave had accrued
court
observed
her;
employer]
“[although
denied the
the sick leave benefit in the
[the
added).
(emphasis
parties’
bargaining agreement
substituted leave.” Id.
collective
District,
Echoing
may
disability
policy,
Richland School
insurance
resеmble
employer
pro-
agree
department
court said that
must
“[a]n
we
quantifiable
vide leave that is definite and
such
is irrelevant. The issue
resemblance
and is
of the FMLA
passage
dated the
leave benefit meets
whether the sick
congressional
intent
fully
consistent
leave
substitute
requirements
discussed,
enacted into
at the time the FMLA was
WFMLA, and,
have
as we
eligible
generally
The FMLA
allows
reasonably concluded that
law.
department
omitted).
(footnote
by covered
employed
who are
employees
at 664
it does.” Id.
up to twelve work
employers
request
to the accumulation
pointed
The court
year
calendar
annually
unpaid
leave each
“by renewing
and weeks
over time
leave
statute,
one of
seniority.”
specified
reasons
employee’s
increasing with an
employee’s
the birth of the
child.
had to be which is
The fact that
Id.
2612(a)(1)(A).
leave
Although
days
receiving paid 29 U.S.C.
for several
before
sick
leave,
unpaid
FMLA is
Con-
the ben- under the
leave
did not render
sick
“[n]othing in
gress provided
[the
or “incalсulable.” Id.
efit “indefinite”
... shall be construed to discour-
FMLA]
us,
to the issue before
the Wis-
Turning
adopting
retaining
from
age employers
courts have never held
appellate
consin
generous
poli-
more
than
policies
the substitution
*13
of
comply
requirements”
that
cies
replace
an
employee
allows
WFMLA
point
§
This
the FMLA. 29 U.S.C.
2653.
un-
family leave with STD benefits
unpaid
sufficiently important
Congress
for
was
plan if the em-
employer’s
der an
statutory section
place it within its own
plan’s
meet the
definition
ployee does not
2601(b)
§
in 29
rather than list it
U.S.C.
disability.
light
governing
In
of the
of the FMLA.
purposes
one of the
that the
it is doubtful
Wiscon-
precedents,
of the
satisfy
requirements
hold because
To
appellate
sin
courts would so
FMLA,
“comply
any
satisfy
require-
employers
their
must
STD benefits do
any
or
may
bargaining agreement
that
collective
type
ments for the
of leave
be
Dist.,
or
that
employment
program
benefit
substituted. See Richland Sch.
Foods, Inc.,
832;
family or medical leave
provides greater
N.W.2d
Kraft
rights
than the
estab-
rights
employees
In
to definite and
N.W.2d at 664.
contrаst
FMLA,
leave,
employ-
days and sick
lished” under the
but
quantifiable vacation
discretionary
rights
contin-
FMLA
“shall not be diminished
benefits are
ee’s
STD
or
by any
bargaining agreement
con-
collective
gent depending on the existence and
program plan.”
or
physical
any employment
or
benefit
employee’s
tinuation of an
§
In
may
consonance with
disability.
mental
benefits
be- 29 U.S.C.
STD
adopted
§§
2652 and
Nationwide
come available under Nationwide’s ERISA
generous
more
than
maternity
policy
the definition
leave
employee
Plan if the
satisfies
Plan,
provisions of either the
disability
unpaid
forth in the
but STD the
leave
set
pro-
accumulate over FMLA or the WFMLA. Nationwide
generally
do not
time,
eight
or
weeks
employee’s
on an
vides a new mother with six
they are not based
for the birth of a child.
seniority,
they
paid
do not have a “draw- of
leave
do
simply
down” feature. STD benefits
majority
stating
that
The
errs
not “accrue” to the
as Wis-
does not mandate
“undisputedly
FMLA
Supreme Court understood
consin
employer-provided
substitution
in Richland School District
term
wаy
Act
leave benefits
throughout its case law.
Maj. Op. at 569. The WFMLA
does.”
substitution;
instead,
WFMLA,
not “mandate”
interpreted by
Wiscon- does
The
terms
courts,
way
expresses
permissive
operates in much the same
the statute
sin
substitute, pre-
employee may
that “[a]n
as the federal FMLA. The WFMLA
leave[,]
2612(d)(2)(A).
...
portions
family
paid
or un-
STD benefits do not fall
paid
any
type provided by
leave of
other
within the federal or the state character-
103.10(5)(b)
employer.”
Wis. Stat.
ization.
added).
(emphasis
gov-
The statute and
These federal
family
and state
leave
erning regulations
allow the
statutes intersect with ERISA and with
un-
paid
elect substitution of
other
one another but each statute
par-
serves a
paid
employ-
has accrued to the
ticular purpose,
they
have coexisted
ee, but it
not require
does
such substitu-
for a quarter
century.
of a
Congress pro-
tion.
vided
ERISA that “[n]othing in this
substitution provision
FMLA’s
subchapter
alter,
shall be construed to
arguably
protective
less
amend,
invalidate,
modify,
impair, or su-
provision
than the WFMLA’s substitution
persede any law of the United States.” 29
Congress provided
because
eligi-
“[a]n
1144(d).
U.S.C.
In determining whether
elect,
employee may
employer
ble
or an
a construction of
“impairs”
may require
employee,
to substitute
operation
statute,
of another federal
like
leave,
any of the
vacation
accrued
FMLA,
the later-enacted
the question is
leave,
personal
leave of the em-
whether that construction “would frustrate
ployee
for leave
the birth of
[for
goal”
of the second law. Shaw v.
part
peri-
child]
of the 12-week
Lines, Inc.,
85, 102,103
Delta Air
463 U.S.
2612(d)(2)(A)
od”
leave. 29 U.S.C.
(1983);
see also
added).
(emphasis
The WFMLA substitu-
Humana
Forsyth,
Inc. v.
tion
employers
does not allow
L.Ed.2d 753
*14
require employees to substitute accrued
(“Shaw
supports
thus
the
that
view
paid
unpaid
leave for
leave under
the
‘impair’ a
operation
law is to hinder its
or
103.10(5)(b).
WFMLA. Wis. Stat.
law”).
goal’
‘frustrate
of that
[a]
“Con-
provision
The WFMLA substitution
also
gress
presumed
legislation
enact
greater employee
rights
creates
leave
than
knowledge
newly-enacted
of the
and a
those under the FMLA because the em-
presumed
statute is
to be harmonious with
ployee may elect to
“paid
substitute
existing
judicial concepts.” Raney
law and
unpaid
type provided by
leave of
other
Prisons,
927,
v. Fed. Bureau
222 F.3d
of
employer.”
the
Grp.,
Aurora Med.
v.
(Fed.Cir.2000) (citing
932
Cannon v. Univ.
Dev.,
1,
Dep’t
236 Wis.2d
612
of Workforce
Chi,
677, 696-98,
1946,
441 U.S.
99 S.Ct.
of
(2000).
646, 650, 657
I previ-
N.W.2d
As
(1979)). Thus,
in the
Life
ERISA,
Cir.2009).
I
family leave statutes
particu-
our
preemption
turn to ERISA
Although
provision,
the
lar context.
1144(a),
may appear to be clear and
legisla-
it is “not
Congress
unambiguous,
in enact-
a model
primary
A
concern of
mismanagement
tive
Mut.
drafting.”
was
John Hancock
ing ERISA
“the
Life
Bank,
Ins.
to finance
Co. v. Harris Trust & Sav.
510
funds accumulated
L.Ed.2d 524
pay employees
the failure to
U.S.
S.Ct.
benefits and
(1993) (internal
omitted).
quotation
funds.”
marks
from accumulated
Mass.
benefits
Morash,
107, 115,
And while the breadth of the “relate to”
U.S.
109 S.Ct.
(1989).
To
clause
“infinite relations can-
apparent,
alleviate
concern,
not be
measure of
N.Y.
Congress
pre-emption.”
this
“established exten-
disclosure,
fiduciary
State
Blue Cross & Blue
reporting,
sive
Conference
Co.,
duty requirements
against
to insure
the Shield Plans v. Travelers Ins.
expectation
645, 656, 115
employee’s
U.S.
S.Ct.
131 L.Ed.2d
possibility
must
...
through
of the benefit would be defeated
We
“look
objectives
guide
management by
administra-
of the ERISA
as a
poor
statute
Congress
to the
the state
Ordinary
scope
tor.” Id.
to em-
law that
(for
wages
example,
like
Id. A
ployees
vacation understood would survive.”
“law
fixed,
leave),
“typically
plan,
that are
due at
to’ an
‘relates
benefit
times,
depend
phrase,
on
normal
if it has
known
do not
contin-
sense of
employee’s
outside
...
with or
to such
gencies
control
connection
reference
Shaw,
96-97,
plan.”
none of the risks that
present
ERISA
address,”
and these
of 2890.
intended
kinds
“Where
State’s law acts immedi-
traditionally
ately
exclusively
plans
upon
benefits have
been
ERISA
115, 119,
regulated by the
Id. at
... or
States.
where
existence
plans
operation
“Absent
indication
is essential to
law’s
...
Congress
in pre-emption.”
intended”
to cover
‘reference’ will result
payments,
routine leave
Cal.
Labor
Div.
Standards
*15
of
Enforcement
Constr.,
Inc.,
N.A.,
significant-
Dillingham
has been “reluctant to so
v.
519
Court
U.S.
316, 325,
832,
ly
separate spheres
interfere with ‘the
of
117 S.Ct.
L.Ed.2d
136
791
(1997).
authority
Congress
in
governmental
preserved
оur
But
did not intend that
”
119,
system.’
preempt
law
federalist
Id.
109 S.Ct. ERISA would
a state
omitted).
(quoted case
another
see
encourages,
1668
federal
Trav-
Co.,
665-66,
elers
514
115
Inc.
U.S. at
“any
expressly preempts
ERISA
and all
1671,
such
would ef-
preemption
because
they may
State laws insofar as
now or
impair the
fectively
federal law violation
relate
hereafter
to an
benefit
1144(d).
Shaw,
of 29 U.S.C.
See
463
1144(a).
29
plan.”
U.S.C.
The term
102,
U.S. at
103
See
S.Ct. 2890.
also
laws, decisions,
“all
“State law” includes
Mass.,
724,
v.
Metro.
Ins. Co.
471 U.S.
Life
rules, regulations, or other State action
2380,
744 n.
L.Ed.2d
105 S.Ct.
85
728
law,
having the effect of
of
State.” 29
1144(c)(1).
purpose
The
of
U.S.C.
conflicting
provision
ERISA
is to avoid
substitution
WFMLA
immediately
and state
in the
does
act
regulation
exclusively
federal
creation
or
nationally
upon
plan
administration of em-
for STD
uniform
Nationwide’s ERISA
benefits,
plans.
Grp.
benefit
v.
nor is the
of such an
ployee
GE
existence
Helfman
to the
plan
oper-
exclusively.”
ERISA
essential
statute’s
control
Assoc. Builders &
Constr., N.A., Inc.,
Dillingham
Dep’t
ation. See
Contractors v. Mich.
Labor and
Growth,
(6th
Economic
543 F.3d
The law
be
if
ERISA
“an
accomplishment
obstacle to the
and
plans.
it has a “connection with” ERISA
purposes
objec-
execution of the full
and
Constr.,
325,
Dillingham
the same
unpaid
Plan STD benefits for
plans
purport
ERISA
not mention ERISA
does
for
leave.
employer’s
program
WFMLA
an
STD
to control
ap-
Importantly, no Wisconsin
employees.
provi-
the WFMLA substitution
Neither
that the substi-
has ever held
pellate court
any
binding
itself nor
Wisconsin
sion
an
may
to force
be
рrovision
tution
presently requires Nationwide
decision
provide paid
plan
benefits
ERISA STD
Plan
of its em-
benefits to one
pay STD
leave
unpaid
lieu of
disability benefits
unpaid
ployees
substitution of
WFMLA
under the WFMLA.
Accordingly,
leave.
conflict
con-
required
existing
to alleviate
that the decision
not
contends
Nationwide
(ALJ)
flicting obligations.
in the
judge
the administrative
impossibility
case demonstrates
Gerum
however,
agree,
I
that a Wisconsin
do
both
compliance
Nationwide’s
attempt
utilize the state ad-
employee’s
WFMLA,
Nation-
law and the
but
ERISA
process
payment
ministrative
to obtain the
claim
wide chose
settle Gerum’s
benefits under Nationwide’s
of STD
controversy
longer pending.
is no
unpaid
Plan as
for
ERISA
substitute
re-
if the ALJ’s
decision
unappealed
Even
Congress
preempted.
leave is
WFMLA
books,
estab-
proof
on the
the trial
mains
civil
comprehensive
intended
ERISA’s
binding
not
on
lished that
decision is
scheme,
1132(a),
enforcement
29 U.S.C.
ALJs,
Wis-
any other Wisconsin
to serve as the
means for enforc-
exclusive
likely
give
would
no
appellate
consin
court
ERISA,
ing rights
рreempting
thus
statutory interpre-
deference to
ALJ’s
Pi-
alternative enforcement mechanisms.
concerned
tation because
decision
41,
Dedeaux,
Ins. Co. v.
U.S.
lot
Life
of law. See Volvo
first-impression issue
(1987).
54, 107
S.Ct.
95 L.Ed.2d
Transp.,
Dep’t
N. Am. v.
Trucks
Wis.
Davila,
Aetna
See also
Health Inc.
423, 428
779 N.W.2d
323 Wis.2d
159 L.Ed.2d
U.S.
(2004) (“[a]ny
cause of action
state-law
Contrary
arguments
duplicates, supplements,
supplants
to some
be-
us,
remedy
civil
con-
the Wisconsin
Court’s ERISA’s
enforcement
fore
while
clear
intent
Group,
congressional
Aurora Medical
flicts with
decision
exclusive,
instructive,
remedy
matter.
and is there-
does not settle this
make
STD
preempt
pre-empted”).
held that
did not
fore
Nationwide’s
Aurora
ERISA
by specific
where
are
substitution
benefits
controlled
WFMLA
terms, definitions,
As I
an
substituted accrued
sick Plan
and laws.
shown,
do
unpaid statutory family
previously
leave. have
STD benefits
leave for
650-52,
similar
parties
to be
in kind to the
appear
N.W.2d
definite,
an
quantifiable
in that
Aurora’s Sick
accrued to
stipulated
case that
leave
has
plan
within
over time that
Pay Plan was welfare benefit
ERISA,
mаy
unpaid
be
meaning
but Wisconsin said
substituted
The Plan’s STD
are more
Supreme Court declined to render
leave.
“non-accrued, discretionary
or con-
about whether Aurora’s sick
like
opinion
case
actually
tingent
Id. at
leave time” that
plan.
was
*17
time.
certainly
Aurora
not address
differentiates from substitutable
650 n. 6.
did
Dist.,
at
of whether
Richland Sch.
498 N.W.2d
presented
the issue
here
See
that
No Wisconsin court has held
ERISA
the WFMLA substitu-
832.
preempts
may
be
tion
where the
wishes
such
substituted.
Further,
requests pay-
separate
an
who
as a
administrative unit” and such
under
ment of STD benefits
Nationwide’s
plan
exempt”
“would be
from ERISA
Plan
ERISA
seeks “to recover benefits
1003(b)(3)).
§
coverage under
As the Su-
him
plan.”
due to
under the terms of his
preme Court explained,
“[i]f
State is
1132(a)(1)(B).
§
Congress
29 U.S.C.
in- not satisfied that
ERISA
com-
tended that ERISA’s civil enforcement
ports
requirements
of its disabili-
provide
remedy
statute would
the sole
for
ty
law, may
insurance
it
compel the em-
an
to obtain STD benefits under
ployer to maintain a separate plan that
Davila,
an
Plan.
ERISA
See
542 U.S. at
comply.”
does
Id. But it
appear
dоes not
210, 124
Characterizing
S.Ct. 2488.
STD that
the WFMLA
provision,
substitution
provided
benefits
under an
Plan
ERISA
drafted,
currently
qualifies as such a
discretionary,
a form of
contingent leave
“disability insurance law.”
regulated by
that is
ERISA law does not
impair
provisions
the substitution
Injunctive
C. Permanent
Relief
FMLA or the WFMLA because those stat-
govern only
utes
accrued paid leave. 29
Finally, I
permanent injunc
turn to the
2612(d)(2)(A);
§
U.S.C.
Wis.
Stat.
tion
by
entered
the district court. Nation
103.10(5)(b);
Admin.
Wis.
Code DWD wide did
prove continuing
irreparable
225.03(1);
Dist.,
Richland Sch.
498 injury
injunctive
to warrant
relief against
at
N.W.2d
charged
state officials
im
plementing the
agree
WFMLA.
I do not
Congress expressly
Because
with the district court that Nationwide es
any employee’s
that
cause of action to
through proof
tablished
that it is “at con
recover non-accrued ERISA STD benefits
having
siderable risk of
against
defend
pursued
1132(a)(1)(B),
must be
WFMLA administrative claims for Plan
alternative state enforcement mechanisms
are
STD benefits
on
preempted.
Penny/Ohlmann/Nie-
based
the WFMLA sub
man,
Valley
provision.”
Inc. v. Miami
stitution
Corp.,
Sherfel,
Pension
(6th Cir.2005).
399 F.3d
F.Supp.2d
To this
pending,
708. There is no
extent,
limited
I would hold that Nation-
against
active case
raising
Nationwide
declaratory
wide is entitled to
relief and issue of substitution of STD benefits for
fiduciary instruction.
Moreover,
unpaid WFMLA leave.
Nation
proof provided only
wide’s
the speculation
If
require employ-
Wisconsin wishes to
“conceivably
of a witness that
this issue
pay disability
ers to
benefits in substitu-
...
ongoing problem,”
is an
R. 111 Page
leave, moreover,
tion
unpaid family
for
ID
and the ALJ decision issued in
accomplish
goal
method to
is not to
Gerum’s case was not appealed and is non
require employers
existing
to alter their
binding
proof
under the
and Wisconsin
Instead,
plans.
may
the State
re-
Columbus,
law. See Kallstrom v. City
quire
employers
provide
(6th Cir.1998) (“In
136 F.3d
through
separately
administered disabili-
junctive
discretionary remedy
relief is a
ty plan,
one
is not covered
traditionally
which courts
abstain from
solely
but that is “maintained
pur-
providing
controversy
unless
ripe
pose of complying”
“disability
with state
resolution.”)
judicial
Because Nationwide
1003(b)(3);
insurance laws.” 29 U.S.C.
Shaw,
(“A
proof
continuing irrepa
fell short
its
D. Conclusion COMPANY, FORD MOTOR em- permits In summary, Wisconsin Plaintiff-Appellant, definite, to calculable
ployees substitute them, such as leave that has accrued leave, for unpaid or sick WFMLA vacation AMERICA, OF UNITED STATES courts appellate leave. The Wisconsin Defendant-Appellee. interpreted have never the WFMLA require of ERISA allow or the substitution No. 10-1934. unpaid family leave. Plan STD benefits of Appeals, United States Court expressly preempt not does Sixth Circuit. provision because WFMLA substitution provision does not relate to Nation- July Argued: 2014. to, ERISA Plan —it not refer wide’s does with, have a the Plan. Be- Decided and Filed: Oct. 2014. connection provision cause the WFMLA substitution Rehearing Denied En Banc Dec. not a state regulation does establish makes it impossible Nationwide law at
comply with ERISA law and state time, provision the substitution
the same The substitution conflict-preempted. however, to the preempted, that a seeks to
extent process
utilize state administrative
obtain STD benefits Nationwide’s
existing Plan that state because enforce-
process establishes alternative Na-
ment mechanism barred ERISA. declaratory
tionwide entitled limited this ground.
relief on Because Nationwide harm, prove continuing irreparable
did not
however, injunctive relief is unwarranted. analysis
My would lead me to affirm court’s
part part reverse district fiduciary
grant declaratory relief and perma-
instructions. I would vacate the injunction remand to the
nent the case proceedings. further I
district court for
therefore concur in respectfully part majority opin-
and dissent in from the part
ion. and filed
Rogers, Judge, Circuit concurred opinion.