Hunton Employment & Labor Perspectives

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.

Under Section 203(o) of the federal Fair Labor Standards Act (“FLSA”), an employee’s time spent “changing clothes” at the beginning or end of each workday is not compensable if such time is expressly excluded from compensable work time in a bona fide collective bargaining agreement or if there is a “custom or practice” of non-payment for such activities (or payment for a set amount of time).  On Monday, the Supreme Court clarified the definition of “changing clothes” for purposes of the FLSA, holding that a class of 800 unionized steelworkers, whose employment was covered by a collective bargaining agreement, were not entitled to compensation for time spent changing into and out of protective gear.

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 November 4, the state of Texas sued the Equal Employment Opportunity Commission and Jacqueline A. Berrien (in her official capacity as chair of the EEOC), requesting a federal district court to declare invalid the EEOC’s enforcement guidance on employers’ use of arrest and conviction records and to enjoin the EEOC from using this guidance against the state and its agencies. Texas v. EEOC, No. 5:13-cv-00255-C (N.D. Tex.).

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Even before passage of the Affordable Care Act (ACA), group health plan sponsors and administrators faced a significant array of notice and disclosure obligations.  Those obligations have only increased with passage of the ACA, and in many cases existing disclosure requirements have been revised.  For this reason, we are providing a table summarizing the principal notice and disclosure obligations currently applicable to group health plans, including those required under the ACA.  The first part of the table summarizes disclosure rules applicable to all welfare benefit plans ...

While much attention has been paid this year to the EEOC’s agenda and litigation over criminal background checks (the agency asserts such background checks have a disparate impact on minority groups), a parallel challenge kept pace in the form of private class action litigation under the Fair Credit Reporting Act (“FCRA”). 2013 saw a number of significant class action settlements against both employers and consumer reporting agencies (“CRAs”) for alleged violations of the Act in the use of criminal background checks:

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.

On December 11, 2013, the Internal Revenue Service issued Notice 2013-74, which provides additional guidance for 401(k), 403(b) and governmental 457(b) plan sponsors on permitting in-plan Roth conversions (called “rollovers”) of pre-tax amounts.

In several recent cases in California, courts have applied Brinker Restaurant Corp., et al. v. Superior Court to reverse trial court decisions denying class certification.  Brinker is the ground breaking case in California where the California Supreme Court held that employers are only required to provide the opportunity for employees to take 30 minute meal breaks, but are not required to ensure those breaks are actually taken.  The Brinker court also held that where an employer has a uniformly-applied policy that is unlawful, class certification may be appropriate.  The recent ...

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.