Hunton Employment & Labor Perspectives

The Fifth Circuit recently joined a majority of its sister circuits in holding that the question of whether arbitration agreements authorize class arbitration should be decided by courts.

In 20/20 Communications v. Lennox Crawford, the Fifth Circuit held that the availability of class-wide arbitration in a Fair Labor Standards Act case is a “gateway issue” of arbitrability.  The court reasoned that the fundamental differences between individual and class-wide arbitration required judicial determination as to which approach was available, absent “clear and unmistakable” language in the agreement delegating the decision to the arbitrator.

The California Labor Code requires employers to reimburse employees for certain expenses, but it’s not always clear which expenses should be reimbursed by the employer, and which expenses should be borne by employees.  Here’s a list of Five Things to Remember About Employee Reimbursements to help California employers navigate this area of the law.

In a unanimous decision in Rodriguez v. Nike Retail Srvs., the Ninth Circuit overturned a California district court’s ruling in a wage and hour class action under the California Labor Code that granted Nike’s motion for summary judgement after applying the federal de minimis doctrine.

In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019),  the NLRB adopted a new framework for determining a union’s representative status once an employer has made a lawful anticipatory withdrawal of recognition based on disaffection evidence that the union has lost its majority status. Specifically, under Johnson Controls, a union seeking to demonstrate that it has reacquired majority status must do so in a secret ballot election conducted by the Board, rather than in an unfair labor practice proceeding.

The California Department of Fair Employment and Housing (“DFEH”) just last month filed an enforcement action in Los Angeles Superior Court against Riot Games, Inc. (“Riot Games”) to compel compliance with its ongoing investigation into allegations of gender discrimination, sexual harassment, sexual assault, and retaliation.  While the identified claims are broad, the primary thrust appears to be the contention that female employees at Riot Games are paid less than their male counterparts.

In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims.  The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.

Facts and Procedural History

Last month, the National Labor Relations Board held that employers do not have to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities.  See UPMC Presbyterian Hospital, 368 NLRB No. 2 (June 14, 2019) (“UPMC”).  In so holding, the Board overruled decades-old precedent.

UPMC specifically involved “public spaces,” a sometimes-gray area in union organizing.  Public spaces are somewhat-private areas on employer property that are also open to the public, such as employee cafeterias or snack bars, as compared to fully-public areas such as retail floors.

Earlier this year, Dallas passed an ordinance requiring all private employers to provide paid sick leave to employees. The Dallas ordinance follows similar laws passed recently in both Austin and San Antonio.

While a district court held the Austin ordinance unconstitutional and preempted its enactment pending a forthcoming Texas Supreme Court decision, the Dallas Ordinance is still set to go into effect August 1, 2019 for businesses with more than five employees (while those with five or fewer have until August 1, 2021 to comply).

As we previously detailed, the Virginia General Assembly enacted an employment records disclosure law requiring employers to furnish Virginia employees certain personnel documents upon request.  That law took effect on July 1, 2019.

California employment laws are constantly evolving, making it a challenge for companies doing business in the Golden State to keep up with recent developments and remain compliant. View this complimentary video where Hunton Andrews Kurth partners Emily Burkhardt Vicente and Amber Rogers discuss “Five Recent Developments in California Employment Law You May Have Missed.”

The Federal Trade Commission (“FTC”) recently rescinded several Model Forms and Disclosures related to the Fair Credit Reporting Act (“FCRA”), determining they are no longer necessary.  As we wrote about last Fall, [“Fall” hyperlink to CEJ and RTQ HELP blog article dated September 21, 2018] this change is the result of the Consumer Financial Protection Bureau (“CFPB”) issuing its own model forms and disclosures.  The FTC forms that have been rescinded and the corresponding CFPB forms that now apply are as follows: