Hunton Employment & Labor Perspectives

On April 14, the National Labor Relations Board changed its rules for processing union elections. The new rules stack the deck against employers by decreasing the time between the filing of a petition and the election, which means that an employer now has less time to educate its employees about the potential impacts of unionization. The new rules also add procedural requirements that employers must address, which can distract the employer from the more important task of running its campaign. Given the significant changes, many have questioned whether it is possible to win an ...

On July 13, 2015, California Governor Jerry Brown signed AB 304 amending the Healthy Workplaces, Healthy Families Act of 2014 clarifying certain terms of the law, effective immediately upon his signature.  The amendments overall make the law easier to implement and have answered many questions employers have had while preparing to meet the requirements of the original law’s effective date of July 1, 2015.  The following is a summary of the key changes to the law.

On July 6, 2015, the National Labor Relations Board invited interested parties and amici to submit briefs in Miller & Anderson, Inc., 05-RC-079249, in connection with the Board’s reexamination of whether temporary employees provided to a company by staffing agencies may be included in the same bargaining unit as the company’s direct employees.  Briefs are due by September 4, 2015.

In a closely watched case, Glatt v. Fox Searchlight Pictures, Inc. (decided July 2, 2015), the Second Circuit rejected the Department of Labor’s (“DOL”) intern test under the Fair Labor Standards Act (“FLSA”), and adopted a balancing test that focuses on whether the employee or the employer is the primary beneficiary of the relationship (“primary beneficiary test”).  This is important because interns are not considered employees, and thus, are exempt from the minimum wage and overtime provisions of the FLSA.

Yesterday, the Department of Labor (“DOL”) issued a proposed rule that is expected to significantly increase the number of employees who are eligible for overtime.  The proposed rule increases the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.  The rule applies to the FLSA’s executive, administrative, professional, and computer employees exemptions, but not the outside sales exemption which does not have a salary basis requirement.

A recent decision from the California Labor Commissioner’s Office found that a former Uber driver was an employee of the company, not an independent contractor as the firm has labeled its motorists.  The implications for Uber, as well as other companies with similar business models, could be far-reaching.

As we previously discussed, employers continue to grapple with the workplace effect of medical marijuana laws (enacted in twenty-three states and the District of Columbia), as well as the recreational marijuana laws of Colorado, Washington, Oregon and Alaska. Notwithstanding these laws, marijuana remains illegal under the federal Controlled Substances Act, and all courts to have addressed the issue thus far have held that employers may continue to insist on a drug-free workplace, conduct drug tests, and take adverse employment action based on positive drug tests. 

Recent guidelines have been issued by the Department of Labor in connection with President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673.  Interested parties will have until July 27, 2015 to submit written comments to the Regulatory Secretariat for consideration before the proposals are finalized.

State legislation concerning employee privacy in social media continues to grow with six states passing such legislation in 2014, including Tennessee, Louisiana, New Hampshire, Oklahoma, Rhode Island, and Wisconsin. As discussed here, these laws focus on an employee’s right not to disclose personal social media passwords to an employer, as well as prevent employers from requiring access to content not available to the general public.

The Supreme Court recently held in EEOC v. Abercrombie & Fitch Stores, Inc. that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even where the applicant has not informed the employer of his need for an accommodation.