Hunton Employment & Labor Perspectives

On October 9, 2011, California Governor Jerry Brown signed SB 459, legislation that creates new and significant civil penalties for employers that misclassify employees as independent contractors. The newly enacted Section 226.8 of the California Labor Code authorizes civil penalties under two circumstances: (1) “Willful misclassification of an individual as an independent contractor;” and (2) “Charging an individual who has been willfully misclassified as an independent contractor a fee, or making any deductions from compensation, for any purpose . . . .” In either case, the “person or employer” responsible for the violation “shall be subject to a civil penalty of not less than five thousand dollars ($5,000) and not more than fifteen thousand dollars ($15,000) for each violation, in addition to any other penalties or fines permitted by law.” Moreover, if there is a determination that a person or employer has engaged in “a pattern or practice” of violations, “the person or employer shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than twenty-five thousand dollars ($25,000) for each violation.”

California Governor Jerry Brown recently signed into law Senate Bill No. 559 (SB 559), which prohibits discrimination based on an individual’s genetic information.  While SB 559 significantly expands the protections from genetic discrimination provided under the federal Genetic Information Nondiscrimination Act of 2008 (GINA), at this time, its impact on most California employers is thought to be limited to the potential for greater damages to be awarded under it than under its federal counterpart.

On October 10, 2011, California became the seventh state to enact legislation restricting public and private employers alike from using consumer credit reports in making hiring and other personnel decisions.  Assembly Bill No. 22 both adds a new provision to the California Labor Code -- Section 1024.5 -- and amends California’s Consumer Credit Reporting Agencies Act (“CCRAA”).  Effective January 1, 2012, California employers will be prohibited from requesting a consumer credit report for employment purposes unless they meet one of the limited statutory exceptions, and those employers meeting an exception, will be subjected to increased disclosure requirements.  Connecticut, Illinois, Hawaii, Oregon, Maryland and Washington already have similar laws on the books, and many other states, as well as the federal government, are contemplating similar legislation.  This trend creates a potential “credit-centric” minefield for employers that do business in any one or more of these states.  In light of the multiple laws affecting their use, employers who utilize consumer credit reports in making personnel decisions should proceed cautiously.  Employers must evaluate the need for these reports in making personnel decisions, review and modify their policies to ensure compliance with the myriad of regulations in this area, and monitor any new developments to ensure continued compliance. 

On October 3, 2011, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010), and remanded it “for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011).” The Supreme Court did not provide any further analysis of the Wang decision in its granting of the petition for a writ of certiorari.

On September 28, 2011, an Illinois federal district court dismissed the putative class action claims brought by U.S. Equal Employment Opportunity Commission (EEOC) against United Parcel Service Inc. (UPS) in a case where the EEOC alleged that UPS’s 12 month medical leave policy violated the Americans With Disabilities Act by not providing reasonable accommodations to disabled employees.  (EEOC v. United Parcel Service Inc., N.D. Ill, No. 1:09-cv-05291.)

On October 4, 2011, the California Supreme Court announced that it will hear oral argument in Brinker v. Superior Court (Hohnbaum) on Tuesday, November 8, 2011, at 9:00 a.m. in San Francisco.  Because the Court’s procedures typically require it to file its written opinion within 90 days of oral argument, employers can reasonably expect a decision in the case sometime between December 2011 and February 2012.

The long-awaited decision is expected to provide clarity concerning the proper interpretation of California’s statutes and regulations governing an employer’s duty to ...

When it comes to disabled access and the Americans with Disabilities Act, it’s not just ramps and restrooms anymore. Now plaintiffs, the U.S. Department of Justice and disability rights groups are looking beyond brick-and-mortar issues and are seeking accessibility to company websites, particularly those websites where business is transacted.

The NLRB announced today that the agency is postponing the deadline for the new employee rights posters from November 14 to January 31 to “allow for further education and outreach.”

We’ll continue to monitor and advise, particularly as to how the various court challenges may affect the agency’s actions on this issue.