Hunton Employment & Labor Perspectives

On March 27, 2013, the U.S. Supreme Court held that evidence of class-wide injury must survive a “rigorous analysis” before a putative class can be certified.  Comcast Corp. v. Behrend, No. 11–864, 2013 WL 1222646, at *5 (U.S. March 27, 2013). While the Comcast case involved subscribers to Comcast’s cable television service who filed a class action lawsuit alleging anti-trust violations and monopolization, the decision is significant for employers facing class actions.

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:

A pending federal case highlights some of the wage-and-hour pitfalls emerging from the use of e-mail and smartphones.  Chicago Police Department Sergeant Jeffrey Allen originally filed his suit, alleging overtime compensation violations under the Fair Labor Standards Act (FLSA) in 2010.  On January 14, 2013, U.S. Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, granted Allen’s conditional certification for a collective action under the FLSA.  In his suit, Allen claims that the City of Chicago violated the FLSA when it failed to compensate him, an hourly non-exempt employee, and a putative class of Chicago police officers for time spent reading and responding to emails via city-issued BlackBerries outside of normal working hours.

California employers may be familiar with Wang v. Chinese Daily News, a wage-and-hour class action that has been in litigation for almost a decade. The latest decision in this case, a published opinion from the Ninth Circuit on March 4, 2013, offers a boost to defense counsel who face a class actions in this circuit.

The Florida Supreme Court issued an opinion on March 7, 2013 that eliminated an oft-used tool in the defense arsenal by limiting application of the economic loss rule to products liability cases.

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On March 19, in The Standard Fire Insurance Company v. Knowles, No. 11-1450, the United States Supreme Court ruled that stipulations by a named plaintiff on behalf of a proposed class prior to certification cannot serve as the basis for avoiding federal jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”).

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.

On March 8, 2013, USCIS issued a major revision of its Form I-9 Employment Eligibility Verification form, pursuant to a Federal Register announcement.

The newly revised Form I-9 adds data fields, including the employee’s foreign passport information, telephone and email address; improves and expands the form's instructions (now six pages); and revises the form layout to two pages, one for the employee and one for the employer.
 
Employers should begin using the new Form I-9 immediately, but are required to use it beginning May 7, 2013.  On that date, all prior versions of Form I-9 – ...

The Internal Revenue Service recently issued an updated version of the Employee Plans Compliance Resolution System (“EPCRS”), which allows companies to voluntarily correct errors in the administration and documentation of their retirement plans (including 401(k) and 403(b) plans).  IRS Revenue Procedure 2013-12 continues EPCRS, but makes a number of changes and adds clarity to several areas of the program that caused confusion in the past.

What should an employer do when a pregnant employee has used all of her allotted leave under CFRA (the California Family Rights Act) and PDLL (Pregnancy Disability Leave Law) but is still not yet able to return to work? Following the appellate court’s recent decision in Sanchez v. Swissport, Inc., No. B237761 (Cal. Ct. App. Feb. 21, 2013), the employer may be required to grant even more leave.