Hunton Employment & Labor Perspectives

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.

As 2013 winds to a close, we take this opportunity to alert you to two significant cases from earlier this year pertaining to the spoliation of social media evidence.  In both of these cases, the plaintiffs – either intentionally or accidentally – destroyed evidence on their social media sites resulting in severe sanctions.  The central takeaway from these cases is that social media evidence – from a preservation standpoint – is identical to physical evidence and, thus, should not be altered, modified, or deleted during the pendency of litigation.

Although the employer shared responsibility (“coverage mandate”) rules under the Patient Protection and Affordable Care Act (PPACA) have been delayed one year (to 2015), there are a number of other PPACA requirements that will still be going into effect in 2014.  For example, the one-year delay does not apply to –

• The final wellness rules;
• The 90-day waiting period limits;
• The preventive care changes; and
• The new cost sharing limits

Plus, employers will soon need to focus again on the coverage mandate compliance process and the related reporting requirements (the initial reports for which will be due in early 2015).  In the meantime, the government continues to issue regulations and other guidance on a variety of matters involving PPACA’s implementation.  

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.

Earlier this month, San Francisco became the nation’s first city to enact a flexible work-time law for employees.  In theory, the law provides relief to employees seeking changes in their work schedules to accommodate their needs to care for their children or elderly parents.

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.

On October 2, 2013, New York City Mayor Michael Bloomberg signed into law an amendment to the city’s Human Rights Law (“NYCHRL”), expanding the scope of the pregnancy discrimination protections provided under the law.  Although discrimination on the basis of an employee’s pregnancy has long been prohibited under the NYCHRL, as well as under state and federal law, the new amendment makes it unlawful for an employer to refuse to reasonably accommodate “the needs of an employee for her pregnancy, childbirth, or related medical conditions.” 

On September 17, 2013, the U.S. Department of Labor (“DOL”) announced a final rule that will extend overtime and minimum wage protections to many direct care workers.  The rule is set to go into effect on January 1, 2015.

When the Fair Labor Standards Act (“FLSA”) was enacted, it did not protect workers employed directly by households in domestic service.  Congress amended the FLSA in 1974 to apply to employees performing household services in a private home.  However, that amendment did not apply to certain workers, such as domestic service workers employed to provide “companionship services” to elderly persons or persons with illnesses, injuries, or disabilities.  With the DOL’s new rule, many direct care workers, such as certified nursing assistants, home health aides, personal care aides, and other caregivers will be subject to the minimum wage and overtime requirements of the FLSA. 

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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