Hunton Employment & Labor Perspectives

The Department of Labor has announced the release of a Final Rule implementing Executive Order 13672, which prohibits discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. Executive Order 13672, signed by President Obama on July 21, 2014, amended Executive Order 11246 by adding sexual orientation and gender identity to the protected categories provided in the latter EO. The Final Rule will be effective 120 days after the date of its official publication in the Federal Register and will apply to government contracts entered into or modified after the effective date.

On November 6, 2014, the Eleventh Circuit reined in the Equal Employment Opportunity Commission’s (EEOC) use of a broad administrative subpoena in an investigation of an individual charge of discrimination.  The case is EEOC v. Royal Caribbean Cruise Lines Ltd.

Federal contractors and subcontractors were just required to file their 2013 VETS-100 and VETS-100A Reports by September 30th.  Going forward, those forms are being replaced by a new form – the VETS-4212 Report.  The Veterans’ Employment and Training Service (VETS)  has published a Final Rule that implements the changes.

This week the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) received approval from the Office of Management and Budget (OMB) for a revised Scheduling Letter and Itemized Listing (a.k.a, a “notice of audit”) for Service and Supply covered contractors.

Less than two months ago, on July 29, 2014, the National Labor Relations (NLRB) made an announcement that it intends to hold franchisors legally responsible for unfair labor practices committed by its franchisees.  A recent Fifth Circuit opinion follows this trend by potentially expanding the number of discrimination and harassment suits corporate parent franchisors may face for discrimination and harassment committed by franchisees. EEOC v. Simbaki, Ltd.

Federal contractors and subcontractors may soon be prohibited by the OFCCP from having polices that prohibit employees from talking about their pay and from discriminating against those who do.  On September 17, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) published a notice of proposed rule-making (NPRM) concerning pay secrecy policies. The proposed rule, which applies to  federal contractors and subcontractors, prohibits pay secrecy policies and bars companies from discriminating against job applicants and all levels of employees who ask about, disclose, or discuss compensation-related information.  This will not be a surprise to those who follow the rulings under the National Labor Relations Act (NLRA), which provides similar protections.

The OFCCP (Office of Federal Contract Compliance Programs), an agency in the Department of Labor, continues its focus on “steering” claims during audits of federal contractors.  “Steering” claims examine whether women or minorities are discriminatorily assigned to less desirable jobs —  typically those with lower pay, less prestige, and/or fewer opportunities for advancement.  Steering claims are a hot topic of late for the federal contractor community. Central Parking Systems of Louisiana Inc. is the latest to pay out a six-figure settlement in this area.

The EEOC and the Mexican Ministry of Foreign Affairs recently signed a National Memorandum of Understanding (MOU). The purpose of the MOU, according to an EEOC press release, is to strengthen the collaborative efforts of the United States and Mexico to inform immigrant, migrant and Mexican workers of their rights under the EEOC’s non-discrimination laws. The MOU is also directed at employers, aiming to provide guidance on their responsibilities under the same laws.  The MOU was signed in both English and Spanish by EEOC Chair Jacqueline A. Berrien and Ambassador Eduardo Medina Mora, at the EEOC headquarters in Washington, D.C.

Executive Order 13672 went into effect on July 21, 2014 and amended Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes.  Executive Order 13672, however, applies only to contracts entered on or after July 21, 2014.  The Office of Federal Contract Compliance Programs (OFCCP) has now issued Directive 2014-02, which interprets the prohibition against sex discrimination in Executive Order 11246 to include discrimination on the basis of gender identity and transgender status.  This means that contractors and subcontractors with contracts that predate July 21 can still be held liable for discrimination on the basis of gender identity and transgender status.

In response to a presidential memorandum directing the Department of Labor (“DOL”) to collect summary compensation data from federal contractors and subcontractors to combat pay discrimination, the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed a rule calling on certain federal contractors to submit reports on employee compensation.  The rule, published in the Federal Register on August 8, requires covered contractors to annually submit an “Equal Pay Report.” Covered federal contractors and subcontractors are those who:

• File EEO-1 reports;
• Have more than 100 employees; and
• Hold federal contracts or subcontracts worth $50,000 or more for at least 30 days.

On July 21, President Obama signed an Executive Order adding sexual orientation and gender identity to the list of protected categories included in Executive Order 11246, originally issued by President Johnson in 1965.  E.O. 11246 now prohibits federal contractors from discriminating against employees or applicants for employment on the basis of race, color, religion, sex, national origin, sexual orientation or gender identity.

In Enforcement Guidance issued last week, the Equal Employment Opportunity Commission took the position that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities.

On June 30, 2014, the United States Supreme Court granted Mach Mining LLC’s petition for writ of certiorari, agreeing to take up the question of whether and to what extent courts may enforce the Equal Employment Opportunity Commission’s (“EEOC”) duty to conciliate a case prior to bringing a lawsuit.

In the most anticipated labor law case in years, the Supreme Court issued a unanimous judgment yesterday holding that the President’s January 2012 “recess” appointments of three members to the National Labor Relations Board was an invalid exercise of his Article II powers.   Noel Canning v. NLRB arose from a labor dispute in which the employer – Noel Canning – had unlawfully refused to execute a collective bargaining agreement with a labor union.  Noel Canning contested the Board’s unfair labor practice ruling on the grounds that, because three of the five Board members were invalidly appointed to the Board when the Senate was not in recess, the Board lacked a quorum to act and therefore had no authority to issue its ruling.

On February 12, 2014, President Obama announced Executive Order 13658, “Establishing a Minimum Wage for Contractors.”  The order seeks to raise the hourly minimum wage paid to workers performing services on covered Federal contracts to: (i) $10.10 per hour, beginning January 1, 2015; and (ii) beginning January 1, 2016, and annually thereafter, an amount determined by the Secretary of Labor in accordance with the Order.

Consistent with a trend in assailing employers’ workplace policies, the NLRB recently struck down nine employee policies, and  the confidential information and non-disclosure agreement of Hoot Winc LLC (d/b/a Hooters), all of which employees signed upon initial hiring.  NLRB Judge William Nelson Cates found that the policies at issue, which dealt with discussion of tips, employee conduct, disclosure of company material and business affairs, and social media, were over-broad and interfered with employees’ rights to engage in  activity protected by Section 7 of the National Labor relations Act (“Act”).  Likewise, the judge found that the restaurant chain’s non-disclosure agreement also infringed on employees’ Section 7 rights.

Last week, the EEOC invited public comment on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973, which governs the federal government’s employment of people with disabilities. Specifically, the EEOC aims to clarify what it means for the federal government to “be a model employer of individuals with disabilities” pursuant to Section 501.  While any revised regulations will only apply to the public employees, how the EEOC defines a “model employer” could impact future interpretations of the Americans with Disabilities Act (ADA), which apply to most private employees. To the extent any resulting regulation is viewed as reasonable, it may have implications for private employers as courts often look to case law interpreting the Rehabilitation Act to assist in interpreting the ADA.

In a budget report released by the House Appropriations Committee on May 8, 2014, lawmakers expressed their concern with “the EEOC’s pursuit of litigation absent good faith conciliation efforts.”   The Committee’s report, which sets out the Committee’s recommended funding proposals for various federal departments and agencies, directs the EEOC “to engage in [good faith conciliation] efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith.”

In the past few months, the EEOC has filed two federal lawsuits challenging what might be considered “run of the mill” separation agreements. Such separation or severance agreements have become a relatively common practice when the employment relationship is terminated, as the employer can offer a severance payment in exchange for a broad release of potential claims. These agreements provide employers with the finality that is necessary for making business decisions, risk assessments, long-term plans, and the like. In cases in which there are potentially viable claims, settling them immediately avoids the time and expense of litigation. And even if the employee would not have had any viable claims against the employer, merely avoiding the possibility of litigation and its costs is usually well worth the amount of the severance payment. The indication that EEOC is taking a closer look at these agreements is thus concerning to employers and the lawyers who represent them.

On April 9, 2014, the Sixth Circuit of Appeals not only affirmed summary judgment in EEOC v. Kaplan Higher Education Corp., et al. but also chastised the EEOC for applying a flawed methodology in its attempts to prove that using credit checks as a pre-employment screen had an unlawful disparate impact against African-American applicants.

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces.  One of the Board’s most noteworthy – and controversial – areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.  Last week, for the first time, a U.S. Court of Appeals agreed with the Board that certain confidentiality restrictions can have such an effect.

On March 10, 2014, the Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) issued joint guidance regarding the use of background checks.  The FTC, which enforces the Fair Credit Reporting Act, monitors compliance with how background checks are conducted.  The EEOC, which enforces federal laws against discrimination, seeks to ensure that the use of background checks does not disparately impact protected groups.

On March 26, 2014, in a novel and potentially ground-breaking decision, National Labor Relations Board (“Board”) Region 13 Director Peter Sung Ohr ruled that Northwestern University football players who receive athletic scholarships are “employees” of the University and are entitled to unionize.  Ohr ordered a secret ballot election to be held for eligible players to vote on whether they want to be represented by the College Athletes Players Association, the Petitioner in this case, for collective bargaining purposes.

On February 25, 2014, National Labor Relations Board (“NLRB” or “the Board”) General Counsel Richard F. Griffin issued Memorandum GC 14-01 to outline the agency’s enforcement priorities for the coming year.  The memorandum, which requires regional offices to submit matters of special interest to the Board’s Division of Advice for guidance on how to proceed, groups those priorities into three categories: (1) matters that involve General Counsel initiatives or areas of law and labor policy that are of particular concern to his office; (2) matters that involve difficult legal issues or areas of law in which governing precedent is unclear; and (3) an updated and expanded list of case-handling matters that have traditionally been submitted to the Division of Advice.

In prior posts, we reported on the U.S. Department of Labor’s attempt to narrow the “advice exception” to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act.  Most recently, the DOL had indicated its intent to issue a final rule in March of 2014 that would narrow the well-known “advice exception” to the reporting requirement to require reporting of any consulting relationships where the consultant engages in actions or communications that would indirectly or directly persuade employees regarding organizing.  Since it was first proposed in 2011, the anticipated final rule has drawn criticism from employers and the attorneys who provide valuable legal advice to employers in the context of union organizing.  If adopted, the rule would have a significant impact on employers because they would no longer be able to avoid reporting third-party consulting arrangements by isolating consultants from direct employee interaction.  The rule could also interfere with an employer’s ability to obtain legal advice from their attorneys due to the concern that both the employer and the attorneys may incur reporting obligations as well.

On March 6, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) released guidance pertaining to employers’ responsibilities to accommodate religious dress and grooming in the workplace.  

The guidance provides explanation and analysis concerning an employer’s responsibilities under Title VII to “make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.”

On Tuesday, the United States Supreme Court held that the whistleblower protections that apply to employees of publicly traded companies under Section 1514A of the Sarbanes-Oxley Act, also  extend to employees of private contractors and subcontractors that serve those public companies.

The Department of Labor’s Veterans’ Employment Training Service recently issued a proposed Rule that would change the current annual VETS-100 and VETS-100A reporting requirements.  There are several significant changes proposed by the DOL which, in a change from other regulatory developments, would actually decrease work for covered employers.

Workers at the Volkswagen AG plant in Chattanooga, Tennessee voted against union representation by the United Auto Workers. The highly anticipated 3-day secret-ballot election, supervised by the National Labor Relations Board, resulted in a 712 to 626 loss for the UAW. This particular election was significant in that a result for representation would have given unions a strategic entry point into the Southern labor market, which has long been resistant to unionization efforts. Additionally, a result for representation would have allowed for the first ever implementation of a German “works council” model for a United States employer. Under German law, a “works council” is a group of elected white-collar and blue-collar council members, separate from a union, that meets with management to discuss a wide variety of working condition issues. This model at the Volkswagen plant may have permitted the experimentation of a more collaborative system between management and workforce, as compared to the fundamentally adversarial relationship between management and traditional labor unions.

Earlier this month, the Equal Employment Opportunity Commission released its fiscal year 2013 enforcement and litigation statistical report.  Each year, the EEOC publishes a comprehensive set of data tables which contain statistics on topics such as numbers of charges filed, types of charges filed, litigation and resolution numbers, and a myriad of other tables that provide insight into the agency’s actions over the 12-month period.

The Office of Federal Contract Compliance Programs (OFCCP) performs compliance audits reviewing numerous federal contractors’ affirmative action plans and practices on a yearly basis.  A number of organizations are reporting that the OFCCP will be sending out courtesy letters (known as corporate scheduling announcement letters, or “CSAL”) notifying employers that they have been selected for such an audit as early as next week.  With the changing landscape of the OFCCP’s affirmative action plan requirements and regulations, it is important that employers be on the lookout for such letters and begin preparations for the audit as soon as possible.

On Monday, January 6, 2014, the National Labor Relations Board (“NLRB”) announced that it declined to seek U.S. Supreme Court review of two adverse rulings concerning its rule requiring employers to display posters informing employees of their right to unionize.  Under the rule, an employer’s failure to display the poster would have constituted an unfair labor practice.

Recently, the United States Court of Appeals for the Fifth Circuit handed down a significant ruling in the continuing conflict over the ability of employers to require employees to arbitrate employment disputes and to waive the right to class arbitration.  In a long-awaited – and, in many circles, expected – decision, the Court overturned the National Labor Relations Board’s ruling that employers violate the National Labor Relations Act by forcing employees to submit employment disputes to individual arbitration.  The Court’s decision may pave the way for employers to enforce class arbitration waivers without fear of NLRB enforcement action….at least not anytime soon.

The government shutdown may have ended six weeks ago, but its impact may be felt for months to come.  The Office of Management and Budget recently released a report entitled “Impacts and Costs of the October 2013 Federal Government Shutdown,” which details the costs of the government shutdown and the impact it had on government workers, which in turn impacts the private sector workplace as well.

The “ban the box” movement continues to sweep through state legislatures.  These laws, which vary in terms of scope and detail, generally prohibit employers from requesting on applications information about applicants’ criminal histories.  Recent legislation in two states applies “ban the box” prohibitions to private employers in the state.

The EEOC recently settled a national origin discrimination case involving a “restrictive language policy” or “English-only rule.”  EEOC v. Mesa Systems, Inc., 2:11-cv-01201 (D. Utah 2013).  The employer agreed to pay $450,000.00 and to provide a variety of injunctive relief, including training, policy revisions, apologies, notice postings, and reporting to the EEOC.  The EEOC’s Strategic Enforcement Plan made it a priority to protect the most “vulnerable workers,” and Commissioner Jacqueline Berrien said the settlement is an important demonstration of a “renewed commitment” to that goal.  And, indeed: this settlement is the latest in a decade-long line of EEOC enforcement actions based on English-only rules.  See, e.g.: $2.44 million settlement with University of Incarnate Word (2001); $700,000 settlement with Premier Operator Services, Inc. (2000).

In a lawsuit filed in the United States District Court for the Northern District of Texas on November 4, 2013, Texas Attorney General Greg Abbott seeks injunctive and declaratory relief against the EEOC on the grounds that the agency’s April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions “purports to preempt the State’s sovereign power to enact and abide by state-law hiring practices.”  In particular, the complaint argues against the EEOC’s prohibition against blanket “no felons” hiring policies.  The Texas AG’s complaint highlights key failures and shortcomings of the EEOC’s recent investigative actions, and provides detailed examples of the “real world” effect of the guidance on the state’s hiring decisions.

On October 7, 2013, the United States Court of Appeals for the Sixth Circuit upheld the imposition of fees and costs against the Equal Employment Opportunity Commission (“EEOC”) in EEOC v. Peoplemark, Inc., Case No. 11-2582, for knowingly pursuing a meritless claim in which the agency alleged that Peoplemark’s criminal background check policy had a disparate impact on minority job applicants.  The EEOC recently has moved aggressively to enforce its April 2012 guidance regarding the use of criminal background checks in hiring.  That guidance appears to suggest that any criminal background check policy may be vulnerable to an EEOC enforcement action under a disparate impact theory—regardless of its terms and the manner in which it is implemented—solely on the basis of national data that show disproportionate rates of incarceration for African-Americans and Hispanics.  However, the Peoplemark decision, of which the EEOC presently seeks en banc review, also heralds an emerging pattern of judicial skepticism towards the agency’s enforcement tactics and its efforts to pursue disparate impact claims premised solely on national statistical evidence that is unrelated to any specific employer practice.

In a 2-1 decision, the Tenth Circuit reversed summary judgment in favor of the EEOC on its claim that Abercrombie & Fitch Stores, Inc. failed to provide an applicant with a reasonable religious accommodation and remanded the case for entry of judgment in favor of Abercrombie.

Federal employees awoke Tuesday morning to discover that the government had shut down for the first time in 17 years after Congress failed to agree on a new budget or extend the current one in a session that went past midnight on Monday.  As a result, more than 800,000 workers across the country have been immediately furloughed, while approximately a million more will report to work without pay to perform operations that have been designated as essential. The Department of Labor and related agencies, including the National Labor Relations Board and Equal Employment Opportunity Commission, will maintain only a skeletal staff during the shutdown to perform tasks “involving the safety of human life or protection of property.”  These offices will continue to accept and docket administrative filings, but all other activities will be suspended until a budget or continuing resolution is passed by Congress.  As such, employers will enjoy a brief respite from the pressure of government investigations and inspections.

On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) published two rules that impose new affirmative action obligations toward veterans and individuals with disabilities. These rules, issued under VEVRAA (Vietnam Era Veterans Readjustment Assistance Act) and Section 503 of the Rehabilitation Act, create significant new burdens for covered federal contractors and subcontractors.

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On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) published two rules that impose new affirmative action obligations for veterans and individuals with disabilities.  These rules, issued under VEVRAA  (Vietnam Era Veterans’ Readjustment Assistance Act) and Section 503 of the Rehabilitation Act, create significant new burdens for covered federal contractors and subcontractors. 

In an Advice Memorandum released last month, the National Labor Relations Board (“NLRB”) Associate General Counsel’s office found that portions of a social media policy violated Section 7 of the National Labor Relations Act, which protects employees’ rights to “self-organiz[e], to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 

EMPLOYMENT DECISIONS

Vance v. Ball State University: Narrow Definition of Supervisor in Harassment Suits
In Vance, the Supreme Court announced a narrow standard for determining which employees constitute “supervisors” for purposes of establishing vicarious liability under Title VII. In a 5-4 decision, the Court decided that a supervisor is a person authorized to take “tangible employment actions,” such as hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The majority opinion rejected the EEOC’s ...

Last week, in American Express Co. v. Italian Colors Restaurant, the United States Supreme Court, in a 5-3 ruling, reversed the Second Circuit and held that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery.  In holding that a class action waiver in an arbitration agreement is enforceable, even as to federal anti-trust claims, this decision builds upon the trend set in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010), AT & T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) – that arbitration agreements should be enforced according to their terms even for claims under federal statutes.

The U.S. Supreme Court yesterday granted certiorari in two high profile labor cases, setting up what promises to be a compelling October 2013 term for labor practitioners.

In an article to be published this month in the Seton Hall University Law Review, Hunton & Williams partners, Terry Connor and Kevin White have challenged the authority of the EEOC to publish its April 2012 Guidance.  That Guidance interprets Title VII to impose disparate impact liability on employers who consider the criminal background of applicants for employment as a criterion for selection.

On Friday, May 31, 2013, Hunton & Williams partner Michael Shebelskie argued on behalf of Big Ridge Inc. in Big Ridge Inc. v. NLRB, the lead case pending in the U.S. Court of Appeals for the Seventh Circuit in which an employer has challenged the constitutionality of President Obama’s January 4, 2012 recess appointments to the NLRB.  Mr. Shebelskie and Hunton & Williams also argued against the validity of the President’s recess appointments before the Fourth Circuit earlier this year in Huntington Ingalls Incorporated v. NLRB.  Argument in the Big Ridge case comes hot on the heels of ...

In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool. 

NLRB Asks Supreme Court To Review Decision That Struck President Obama’s Recess Appointments

On April 25, 2013, the National Labor Relations Board (“NLRB” or “Board”) filed a petition for a writ of certiorari asking the United States Supreme Court to review the decision in NLRB v. Noel Canning in which the D.C. Circuit Court of Appeals held that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional.  The Court ruled President Obama’s appointments were not valid because the Senate was not in “the Recess” at the time he made them and thus, the Board lacked the required quorum needed to conduct business.  Under the Recess Appointments Clause of the Constitution, the President is able to bypass Senate approval and fill executive vacancies “that may happen during the Recess of the Senate.”  The Court held “the Recess” means the intersession break between annual Senate sessions, not any intrasession break during an ongoing session.  It also held an executive vacancy does not “happen” during the Recess unless the office actually becomes vacant during such a recess.

On May 7, 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit invalidated a rule promulgated by the NLRB that would have required employers to post notices of employee’s rights under the National Labor Relations Act (“NLRA”) in the workplace.  According to the Court, employers have the right not to speak, and thus can be silent, on these issues.  Another case regarding the same issue is currently pending on appeal in the Fourth Circuit.

The Equal Employment Opportunity Commission (“EEOC”) announced that it won what it describes as a “historic” verdict last week when an Iowa federal jury awarded $240 million to a group of intellectually disabled plant workers who were subjected to disability-based discrimination and harassment.  The award is the largest in the agency’s history.  The EEOC’s General Counsel, David Lopez, remarked that the verdict is “one of the EEOC's finest moments in its ongoing efforts to combat employment discrimination.”

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations.  Banner Health held that to require confidentiality of investigations, an employer must show more than a generalized concern with protecting the integrity of its investigations.  Rather, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

The Office of Federal Contract Compliance Programs (“OFCCP”) has a long history of attempting to assert jurisdiction over hospitals.  A recent federal court ruling confirms that, despite some recent victories for hospital employers in this area, hospitals may indeed find themselves subject to OFCCP jurisdiction.

The U.S. District Court for the District of Columbia recently ruled in UPMC Braddock v. Harris, D.D.C. No. 09-01210 (2013), that three Pittsburgh hospitals are covered federal government “subcontractors” because they contracted with an HMO to provide medical services to Federal employees and their beneficiaries.  The court found the hospitals’ provision of medical services was “necessary” to the HMO’s contract with the Office of Personnel Management (“OPM”).

The 2012-2013 flu season continues to take a toll on the workplace.  According to the Centers for Disease Control (”CDC”), this year’s flu season began four weeks earlier than most recent seasons and, as of the week ending March 9, 2013, flu season activity has remained elevated across the United States.  Having already taken the lives of 64 children, and with adult numbers  unavailable until the end of the flu season, many employers are considering the implementation of mandatory flu vaccination policies.  While such policies may serve business and safety needs of protecting their workplace and workforce, employers should ask themselves the following three questions before adopting such a policy:

Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP” or “Office”) has rescinded two guidance documents implemented during the Bush administration that outlined methods for investigating and evaluating pay discrimination claims against federal contractors and replaced them with new guidelines emphasizing a case-by-case approach that provides investigators with authority to conduct more thorough investigations and identify a broader range of compensation-related discrimination.  The first document, Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (“Compensation Standards”), set forth the procedures OFCCP followed when issuing a notice of violation for pay discrimination; and the second document, Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 (“Voluntary Guidelines”), contained directions that federal contractors themselves could follow to preemptively show compliance with their obligation to evaluate their internal pay practices for fairness.

Earlier today the D.C. Circuit issued its decision in Noel Canning, v. NLRB finding that President Obama’s January 4, 2012 recess appointments of NLRB members Griffin, Block and Flynn (who has since resigned) were unconstitutional.  The Court therefore concluded that the Board lacked the required quorum needed to conduct business and therefore that its ruling on the merits of the case was void.  In reaching this determination, the Court interpreted the meaning of “recess” within the Appointments Clause, finding that it referred only to intersession recesses – that is, the ...

In numerous prior posts, we have reported about the pro-labor decisions and regulatory changes by the Democratic-majority National Labor Relation Board.  Unfortunately, the Board is at it again, this time in WKYC-TV, Inc., 359 NLRB No. 30 (2012) , reversing a fifty-year-old precedent regarding the effect of contract expiration on a dues checkoff clause contained in the expired contract.

Those employers hoping for an appellate court decision on President Obama’s controversial “recess” appointments to the National Labor Relations Board will have to wait a while longer.  In Richards v. NLRB, 7th Cir. No. 12-1973 (decision issued December 26, 2012), the Seventh Circuit sidestepped a ruling on the “recess” appointment question by denying the employer’s petition for review on standing grounds.

As a result of the National Labor Relations Board’s (the “Board”) decision in Latino Express, Inc., 359 NLRB No. 44 (Dec. 18, 2012), employers will now have greater obligations in cases where individuals are awarded lump-sum backpay.  Making good on its earlier promise, the Board held that employers must reimburse individuals for any additional federal or state income taxes, which may result when a lump-sum backpay award covers more than one calendar year.  The Board also held that employers must submit appropriate documentation to the Social Security Administration (“SSA”) so that backpay is allocated to the appropriate calendar quarters.  The Board’s decision follows, a March 2011 memorandum issued by Acting General Counsel, Lafe Solomon, in which he addressed both of these issues instructing Regions to seek a remedy with a tax component in cases involving lump-sum backpay as well as a remedy requiring employers to notify the SSA of the appropriate periods for allocating backpay.

The U.S. Equal Employment Opportunity Commission (the “EEOC”) recently approved a new Strategic Enforcement Plan to establish national enforcement priorities and provide more transparency for employers who may find themselves the subject of EEOC investigations.  After soliciting public and internal recommendations, the EEOC approved a plan that identifies six specific areas in which the agency believes increased enforcement will result in the most change. 

Michigan GOP leaders announced plans on December 6, 2012, to fast track “right to work” legislation during the lame duck session.  Just hours after the legislation was introduced and amid protests at the state Capitol, both the state Senate and House of Representatives approved bills prohibiting private-sector unions from requiring non-union employees to pay union dues as a condition of employment.  The Senate also quickly voted to approve a bill banning public-sector unions, except those representing police officers and firefighters, from requiring non-union members to pay union dues. 

The National Labor Relations Board’s (“NLRB”) General Counsel recently released an analysis of contested at-will employment clauses in two employment handbooks and ultimately concluded that neither violated the National Labor Relations Act (“NLRA”).

Employees had filed charges with the NLRB alleging that the at-will employment clauses contained in the employee handbooks distributed by Rocha Transportation, a California trucking company, and SWH Corporation d/b/a Mimi’s Café, a restaurant in Arizona, defined at-will employment so broadly that employees would reasonably think that they could not engage in activity protected by the NLRA.  The clause contained in Rocha Transportation’s handbook advised its employees that their employment is at-will and may be terminated at any time.  It also stated that “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the president of the Company has the authority to make any such agreement and then only in writing.”  Mimi’s Café’s description of at-will employment in its handbook included the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.”  The NLRB’s Division of Advice prepared two memos which found that each of the clauses described above were lawful.

The Administrative Review Board (“ARB”) has issued its decision in OFCCP v. Florida Hospital of Orlando, ruling that Florida Hospital is not a federal subcontractor and therefore not subject to the jurisdiction of the Office of Federal Contract Compliance Programs (“OFCCP”). The OFCCP is a federal agency that enforces equal employment opportunity and affirmative action laws. Entities subject to its jurisdiction have numerous affirmative action obligations. The ARB’s decision addresses whether the OFCCP can establish jurisdiction over hospitals and other health care entities based solely on their contracts to provide medical services for beneficiaries of TRICARE.

On April 25, the Equal Employment Opportunity Commission  adopted its Enforcement Guidance: Consideration of Arrest - Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“2012 Guidance”), expanding on its 1987 and later policy statements to its field offices.

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The EEOC is targeting pregnancy discrimination in several states.  The EEOC has filed a string of recent cases in an apparent attempt to crack down on workplace discrimination against pregnant women.  A California-based security guard contractor was recently sued by the EEOC on September 20 after it terminated a female employee when she tried to return to work after her pregnancy leave.  A week later, a Texas-based restaurant was also sued after terminating eight pregnant employees. The restaurant allegedly had in place a written policy that instructed managers to terminate pregnant employees three months into their pregnancies.  One of the fired employees was terminated pursuant to the policy even though her doctor had cleared her to work without restrictions until the 36th week of her pregnancy.   In another restaurant-related complaint, this one filed September 27, the EEOC sued a Florida-based restaurant in Panama City, Florida for terminating two pregnant waitresses.  According to the EEOC, the restaurant told pregnant workers that their pregnancies made them a “liability” to the company.  In a related matter, the EEOC is seeking an injunction against a Michigan juvenile detention center to prevent it from maintaining a policy that requires women to immediately notify the company when they become pregnant.

On September 20, 2012, Administrative Law Judge Clifford H. Anderson struck down telecommunications company EchoStar Corp.’s policy prohibiting employees from making disparaging comments about it on social media sites. The NLRB judge found that the prohibition, as well as a ban on employees using social media sites with company resources or on company time, chilled employees’ exercise of their rights under Section 7 of the National Labor Relations Act (“NLRA”). The EchoStar decision comes on the heels of the NLRB’s recent ruling striking down Costco Wholesale Corp.’s policy barring employees from posting statements online that were harmful to the company’s reputation.

On September 7, 2012, the National Labor Relations Board invalidated Costco Wholesale Corp.’s policy of prohibiting employee electronic posts in its first decision involving an employer’s social media policy.  In Costco Wholesale Corporation and UFCW Local 371, Case No. 3A-CA-012421, the Board held, among other things, that Costco’s rule prohibiting employees from posting statements electronically that “damage the Company, defame any individual or damage any person’s reputation” was overly broad.  The Board reasoned that the policy language contained no restrictions on its application and, thus, clearly encompassed protected concerted communications, such as speech that is critical of Costco or its agents.  Accordingly, the rule had a tendency to chill employees’ protected activity in violation of Section 8(a)(1) of the National Labor Relations Act, which makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7.

The U.S. District Court for the Western District of Pennsylvania held recently that the U.S. Equal Employment Opportunity Commission’s “pattern and practice” disability discrimination claims are subject to a 300-day limitations period, furthering a pronounced split among federal district courts on the issue.  In the case, the EEOC took the position that its pattern or practice claims under the Americans with Disabilities Act were not subject to the limitations period, or, in the alternative, that the employer’s violations constituted a “continuous violation” and the EEOC’s claims were, thus, exempt from the 300-day limitations period.  The court, however, agreed with the employer’s position that the EEOC’s claims were subject to the limitations period based upon the plain language of the statute.  The decision holds the EEOC subject to the same limitations period applicable to individual claimants in any Title VII context.

The NLRB has again asserted its willingness to encroach upon employers’ long standing legitimate employment policies in a non-unionized workforce.  In Banner Health System, 358 NLRB No. 93 (July 30, 2012), the Board held that a blanket policy prohibiting an employee from discussing an ongoing investigation violates section 8(a)(1) of the National Labor Relations Act.

Section 302 of the Labor Management Relations Act (LMRA) is, and always has been, an odd law. Its bare terms — which make it unlawful for an employer to “pay, lend or deliver” money or any “other thing of value” to a labor union or official, or for a union to “request, demand, receive or accept” the same from an employer — can be read expansively. Its most commonly cited proscriptions carry nothing more than a general intent requirement, suggesting that one can violate its provisions inadvertently.

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In recent years, the National Labor Relations Board (NLRB) and unions have placed a growing emphasis on extending the application of labor law into the social media arena.  As part of this initiative, the NLRB has adopted a strong stance against social media policies that it believes pose a threat to employees’ right to engage in protected activities under Section 7 of the National Labor Relations Act (NLRA).

The EEOC is appealing the recent decision in EEOC v. Houston Funding II, Ltd., et al., Case No. H-11-2442 (S.D. Tex. Feb. 2, 2012), which dismissed a complaint filed by the EEOC, and held that “firing someone because of lactation or breast-pumping is not sex discrimination.”  The District Court stated that even if the EEOC could prove that Houston Funding had fired an employee because she sought permission to pump breast milk at the office, the agency would not have a Title VII claim because lactation is not pregnancy, childbirth, or a related medical condition.

On June 4, 2012, the California Court of Appeal held that class-action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (“FAA”).  In Iskanian v. CLS Transportation Los Angeles LLC, the appeal court affirmed an order to compel arbitration of wage-and-hour claims in light of the 2011 United States Supreme Court case AT&T Mobility LLC v. Concepcion.  As a result, Iskanian provides employers with the necessary ammunition to argue for the enforceability of employment contract provisions providing for arbitration of claims and waiver of class-action lawsuits.

It is commonplace in employment litigation to learn that a charge by a single employee of a discrete violation of law has become the basis for broad and far reaching requests for information and documents or that the EEOC has filed a complaint for hundreds of employees it has not even considered in its investigation or in its attempts at statutory conciliation.

In what has roundly been hailed as a landmark decision, the Equal Employment Opportunity Commission (“EEOC”) held in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 20, 2012) that, although no federal statute explicitly prohibits employment discrimination based on gender identity, transgender individuals may nonetheless state a claim for sex discrimination under Title VII.

As noted yesterday in our post, the United States District Court for the District of Columbia’s decision to strike down the National Labor Relations Board’s “quickie” election rules was based on a highly technical analysis.  Specifically, the Court found that the Board failed to obtain a proper quorum of at least three Board Members because of Republican Member Brian Hayes’ limited involvement in the rulemaking process.  However, the Court indicated that the Board might have authority to issue the quickie election rules if it musters a legally recognized quorum.

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

The NLRB's "quickie election" rules will go into effect today, April 30, in light of a federal district court decision denying a Motion seeking an injunction against the rule becoming effective. The Court indicated that it would issue a written opinion before the date on which any election could be held under the new rules. Our calculation is that, at least for now, the minimum time necessary for an election to be held after the filing of a petition is 17 days.

The  Court's Order reads:  “As the parties discussed in a conference call with the Court at 5:00 p.m. on April 27, the Court ORDERS that ...

Last week, the U.S. Court of Appeals for the D.C. Circuit significantly limited the time period in which employers may be cited for recordkeeping violations under the Occupational Safety and Health Act (“the Act”) in AKM LLC dba Volks Constructors v. Secretary of Labor, Civ. No. 11-1106.  The Court ruled that such violations must be cited within six months of their occurrence, marking a considerable decrease from the previous practice of citing violations from up to five years prior--the period of time during which injury and illness logs must be retained under the Act.  In doing so, the federal appeals court rejected the independent Occupational Safety and Health Review Commission’s decision upholding an enforcement action against Volks Constructors and the Occupational Safety and Health Agency’s (“OSHA”) argument that Volks’s failure to keep injury and illness logs constituted continuing violations.

On March 12, 2012, OSHA issued a memorandum expanding on specific policies and practices that OSHA asserts can discourage employees from reporting workplace injuries or illnesses, and thus, violate the Occupational Safety and Health Act (“OSH Act” or “Act”) and/or the Federal Railroad Safety Act (“FRSA”).  Intended as guidance to both field compliance officers and whistleblower investigative staff, the memorandum notes four programs or practices that, while potentially useful to management as a metric for safety performance, cannot be condoned without careful scrutiny because of the risk they could chill employee reporting of workplace injuries or illnesses.

In what was a welcome decision for employers recently targeted by EEOC administrative subpoenas, on February 27, 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a district court’s refusal to enforce what it deemed to be an “incredibly broad” administrative subpoena from the Equal Employment Opportunity Commission.  The decision — EEOC v. Burlington N. Santa Fe Ry. Co., No. 11-1121 — resolved Burlington Northern Santa Fe Railway Co.’s two-year battle with the agency over an administrative subpoena seeking nationwide recordkeeping data.  The EEOC’s administrative enforcement powers stem directly from the agency’s broad legislative mandate to investigate systemic discrimination, the frequency of which has increased in recent years.  But, the Tenth Circuit’s decision is good news for many employers.  Not only does its decision confirm that the EEOC’s subpoena and discovery authority is, in fact, limited, but it also prohibits the agency from initiating “pattern or practice” discovery that is irrelevant to its current charges.

While “employees” have the right to form, join, or assist labor organizations under the National Labor Relations Act (NLRA), supervisors are not employees under the statute and do not have the same rights.  Under current case law, “supervisor” is interpreted broadly and employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act.  As expected and as we previewed in a prior posting, Senate Democrats recently announced new legislation that would narrow the definition of “supervisor” under the NLRA, increasing the number of workers eligible to join unions.

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA.  Employers have been following the story with interest.

Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”).  The new requirement initially had an effective date of November 14, 2011, but it has been delayed several times.  The NLRB first delayed implementation until January 31, 2012, to allow “for further education and outreach.”  Then, several industry groups and businesses filed federal lawsuits in South Carolina and Washington, D.C., challenging the NLRB’s Final Rule.  The groups argued the NLRB did not have statutory authority to issue the notice requirement.  While the lawsuits were pending, in the District of Columbia and South Carolina, the NLRB agreed to further delay implementation until April 30, 2012.

On February 28, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance to wounded veterans and to employers under the ADA Amendments Act of 2008.  The two publications are revised versions of guides that originally were posted by the EEOC in February 2008. This guidance reflects another move by federal agencies to address the employment of disabled persons.  Last December, we reported that the OFCCP issued a Notice of Proposed Rulemaking that would, among other things, establish a national utilization goal for individuals with disabilities. There is certainly more than one indication from the federal government that employers will likely continue to face heightened responsibilities concerning the employment of disabled individuals.

The Office of Federal Contract Compliance Programs (OFCCP) budget request for next year reflects its intent to increase aggressive enforcement.  The OFCCP, part of the U.S. Department of Labor, is the agency charged with enforcing the affirmative action obligations of federal contractors and subcontractors.   Approximately 25% of the American workforce is employed by federal contractors and subcontractors, whose federal contracts total more than $700 billion annually.  The OFCCP’s proposed budget for FY 2013 is now available online.

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes.  This posting focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

Several of our recent posts have addressed the sharp criticism directed towards President Obama in response to his recent recess appointments to the NLRB.  A new case filed in the Eastern District of New York may result in one of the first court rulings involving a challenge to the President’s authority to have made the appointments.  In Paulsen v. Renaissance Equity Holdings, LLC, No. 1:12-cv-00350-BMC, a case in which the NLRB is seeking a federal court injunction to declare an end to an employer lockout, the Defendant is contesting the action on the grounds that because three of the Board’s five members have not been validly appointed, the Board has no authority to act.

On January 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) released its enforcement and litigation statistics for FY 2011.  The statistics show that the EEOC received a record 99,947 charges of discrimination and that, despite a record number of charges, the EEOC processed and resolved more charges than were filed, resolving 112,499 charges during FY 2011.  On the monetary damages front, the EEOC obtained $455.6 million in relief through EEOC mediation and litigation efforts, which represents $51 million increase from the previous fiscal year.

Last month, the Eleventh Circuit issued an important ruling in favor of an employee who is accusing his employer and UNITE HERE of violating the Labor Management Relations Act ("LMRA") by entering into an organizing rights agreement that includes employer neutrality and employee access features.  In Mulhall v. UNITE HERE Local 355, No. 11-10594 (11th Cir. January 18, 2012), the Court reversed a lower court decision dismissing Mulhall's lawsuit.  That court had held that Section 302 of the LMRA, which forbids employers from "pay[ing], lend[ing] or deliver[ing]" money or any other "thing of value" to a labor organization, could not be construed to outlaw voluntary agreements between employers and unions that set conditions for union organizing campaigns.

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.

Two members of the National Labor Relations Board recently held that employers may not require employees to enter into arbitration agreements, as a condition of employment, that waive the ability to pursue class or collective claims. The Board’s ruling does not sound the death knell for class action waivers, however, as many Plaintiff’s lawyers have touted.

On Monday, the National Labor Relations Board swore in three new Board Members.  The NLRB now has a full Board with five Members for the first time since August 2010.  The new members -- Sharon Block, Terence F. Flynn, and Richard Griffin -- were named by President Obama on January 4, 2012, as recess appointments.

Their membership on the Board will likely be a continuing source of political friction and legal controversy since the Senate was not formally in recess at the time the President announced their appointments.  The U.S. House of Representatives Education and Workforce Committee ...

In a political shocker, President Barack Obama announced Wednesday that he will make recess appointments to immediately fill three NLRB Board Member vacancies.  President Obama’s appointees include two Democrats, union lawyer Richard Griffin and Labor Department official Sharon Block, and one Republican, NLRB lawyer Terence Flynn.

President Barack Obama recently announced that he intends to nominate Sharon Block and Richard Griffin to the National Labor Relations Board (“NLRB”).

Block and Griffin (both lawyers) have significant experience working to advance organized labor policies.  Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  She was previously a senior labor counsel for the Senate Health, Education, and Labor and Pensions Committee and worked for Senator Edward Kennedy during that time.  Block also served at the NLRB as an attorney.  Griffin is the general counsel for the International Union of Operating Affairs, and he is a member of the board of directors for the AFL-CIO Lawyers Coordinating Committee.

We reported last week that the NLRB's new "ambush election rule," as it is called by some critics, is facing a federal court challenge from a coalition of business groups led by the U.S. Chamber of Commerce.  The filing of that litigation has interfered with the Board's plans to implement its employer notice posting rule, issued earlier this year.  That rule -- which requires private-sector employers covered by the NLRA to post a notice that tells employees about their right to unionize, gives examples of unlawful employer and union conduct and tells employees how to contact the NLRB with questions and complaints -- has also been challenged in the Chamber's lawsuit.  The NLRB earlier had postponed implementation of the rule until January 31, 2012.  The judge, however, recently told the parties to the suit that she did not think the Board's January deadline would allow them sufficient time to argue the merits of the rule.

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.

On December 8, 2011 the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice of Proposed Rulemaking in the Federal Register that would revise the regulations implementing Section 503 of the Rehabilitation Act of 1973, including setting hiring goals for individuals with disabilities.

Federal contractors have numerous non-discrimination and affirmative action obligations under Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA") and the Rehabilitation Act, including the preparation of annual written affirmative action plans. These obligations are enforced by the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"), which is currently headed by Patricia A. Shiu.  Since Shiu was appointed director in August of 2009, the OFCCP has been extremely active, increasing contractors' affirmative ...