Hunton Employment & Labor Perspectives

Although there is no federally-mandated paid leave for U.S. employees in the private sector, states have increasingly required that employers provide various forms of paid leave to their employees.  That trend continues as several states began imposing requirements upon employers to permit employees to accrue and use paid sick leave for certain medical situations for employees or members of employees’ immediate families.  Paid sick leave for employees in the private sector is now required by 17 states, the District of Columbia, and various municipalities around the country.

On February 8, 2024, the U.S. Supreme Court issued a unanimous opinion holding that a whistleblower with a retaliation claim under the Sarbanes-Oxley Act of 2002 (“SOX”) does not need to establish that their employer acted with “retaliatory intent” to succeed on their claim. An employee must merely show that their protected whistleblowing activity was a “contributing factor” in an adverse employment action against them by their employer. Murray v. UBS Securities, LLC, 144 S.Ct. 445 (2024). An employer’s retaliatory intent or lack of animosity is “irrelevant.”  Id. at 446.

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.”  Houston Area Safety Council, Inc, v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”).  In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees.  Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”).  In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests. 

A recent opinion out of the Texas 14^th Court of Appeals has raised the bar for employers trying to enforce arbitration agreements electronically signed by employees.  See Houston ANUSA, LLC d/b/a AutoNation USA Houston v. Shattenkirk, No. 14-20-00446-CV, 2023 WL 5437714 (Tex. App.—Houston [14th Dist.] Aug. 24, 2023, no pet. h.).

Avid readers of this blog will recall three prior postings about a wage and hour dispute under the Fair Labor Standards Act (“FLSA”) between an off-shore tool-pusher, Michael Hewitt, and his prior employer, Helix Energy Solutions Group, Inc.  As background, those articles can be found here: 

• Supreme Court Will Consider Helix Day Rate Pay Case
• Cert Filed in Hope Supreme Court Will Reevaluate Fifth Circuit’s FLSA OT Ruling
• Upcoming Fifth Circuit Hearing to Address FLSA Day-Rate Issues

At the core of the dispute was whether Hewitt was entitled to receive an overtime rate for hours ...

In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964.  At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off.  The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns. 

Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”).  Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.

On December 6, 2021, New York City Mayor Bill de Blasio surprised employers by announcing on MSNBC’s “Morning Joe” that, starting December 27, NYC will mandate vaccines for all private-sector workers.  The mandate is expected to affect around 184,000 employers.

Most employers know the Fair Labor Standards Act (“FLSA”) requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies.  But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week.  Payment on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.

In recent years, there has been a growing trend amongst litigants of protecting documents filed as part of the judicial record from public view by sealing them by agreement under a protective order.  However, a recent opinion out of the U.S. Court of Appeals for the Fifth Circuit criticizes this now-common practice.  Binh Hoa Le v. Exeter Fin. Corp., No. 20-10377, ––– F.3d –––, 2021 WL 838266 (5th Cir. March 5, 2021).

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.

On November 17, 2020 the Equal Employment Opportunity Commission (“EEOC”) released proposed updates to its Compliance Manual on Religious Discrimination (“Manual”). The draft revisions are available for public input until December 17, 2020, after which the EEOC will consider the public’s input, make any changes, and publish the finalized Manual.

As Fall settles in and schools reopen, many employees with children (and their employers) are breathing a masked sigh of relief. Back to school means back to work, and back to work means increased productivity and greater job stability during a time when productivity and stability are needed.

While most EEOC enforcement actions are related to individual complaints of discrimination and/or retaliation, so-called “pattern or practice” matters are those in which the EEOC attempts to show that an employer has systematically engaged in discriminatory activities. The Equal Employment Opportunity states on its website, “Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” To combat systemic discrimination, section 707(a) of Title VII of the Civil Rights Act of 1964 authorizes the EEOC to sue employers engaged in a pattern or practice of discrimination.

As most employers are well aware, the Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex national origin, age, disability or genetic information. After an individual submits a charge of discrimination to the EEOC—and if the parties cannot come to an agreement to settle the charge through the EEOC’s mediation process—the EEOC investigates the allegations to determine whether there is reasonable cause to believe that discrimination has occurred. Generally, the EEOC does not make a finding, and instead issues a “Dismissal and Notice of Rights” (more commonly known as a “right-to-sue” letter) notifying the charging party that they have 90 days to file a discrimination lawsuit, or their right to sue based on the charge will be lost.

Although the World Health Organization (“WHO”) has declared the coronavirus outbreak a “public health emergency of international concern,” WHO has not yet declared the outbreak as a pandemic. Nevertheless, the emergence of the latest coronavirus is an opportunity for employers, as it reminds them to consider policies and procedures related to pandemic planning.  The following are a few of the key considerations for employers when planning for or responding to an outbreak.

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures.

The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015. Those changes effectively sped up the election process and cut down on employers’ ability to litigate many important legal issues prior to voting, putting employers at a disadvantage.

This month, California Governor Gavin Newsom signed several employment-related bills into law. The laws go into effect January 1, 2020, and include an extension to the deadline to file certain state discrimination claims and address harassment training and prevention, as well as mandatory arbitration agreements.

In the wake of the #MeToo movement, the EEOC reconvened its task force on sexual harassment in June 2018.  Most recently, in a continued effort  to focus on leading harassment prevention efforts, the EEOC organized the “Industry Leaders Roundtable Discussion on Harassment Prevention.” On March 20, 2019, the EEOC held a roundtable discussion with various industry leaders to strategize regarding effective harassment prevention efforts and to “inform strategies for the next generation of issues flowing” from the EEOC’s task force reports and the #MeToo movement. Top tier representatives from national associations of homebuilders, manufacturers, human resources, retailers, hospitality providers and others attended and offered their perspectives.

The EEOC recently released a report highlighting the Commission’s efforts to combat sexual harassment in the past year.  The report, which includes preliminary data for the fiscal year ending on September 30, 2018, illustrates that the Commission has been, in the EEOC’s words, “vigorously enforcing the law” in the wake of the #MeToo movement.