Hunton Employment & Labor Perspectives

On November 12, 2014, the Ninth Circuit held  that sufficient specificity in pleading is required under the Fair Labor Standards Act (FLSA) in Greg Landers v. Quality Communications Inc.  The Ninth Circuit affirmed the dismissal of a proposed overtime class action.  While this was an issue of first impression for the Ninth Circuit, the decision falls in line with similar rulings made by the First, Second and Third Circuits and disagrees with the Eleventh Circuit holding that conclusory allegations that merely recite the statutory language are adequate.

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers.

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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.

On October 1, 2014 the Los Angeles City Council voted again to require large hotels to pay workers a minimum wage of $15.37, exclusive of gratuities, bonuses, or service charge distributions after first passing the bill 12-3 on September 24, 2014.  (A second vote was required under Los Angeles City Council rules because the first vote was not unanimous.)  Assuming Mayor Garcetti signs the bill, which he has reportedly already promised to do, the bill will go into effect on July 1, 2015, applying first to hotel employees at hotels with 300 or more guest rooms and then, on July 1, 2016, expanding its reach to hotel employees employed by hotels with 150 or more guest rooms.

On September 28, California Governor Jerry Brown signed into law AB 1897, a bill that extends liability for workers supplied by “labor contractors” to the contracting employer. The new law provides that a “client employer,” defined as a business entity that obtains or is provided workers to perform labor within its usual course of business from a labor contractor, will share responsibility and liability with the labor contractor for payment of wages and failure to secure valid workers’ compensation coverage. The definition of “client employer” excludes businesses with a workforce of fewer than 25 workers (including both employees and temp hires) and those with 5 or fewer temp workers at any given time. The law also includes an anti-retaliation provision.

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.

The IRS recently issued draft versions of the new Forms 1094-B, 1094-C, 1095-B and 1095-C (the “Forms”) along with related draft Instructions.

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.