Hunton Employment & Labor Perspectives

The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges.  See A Year In Review: EEOC Charges & Trends.  This wave of charges is historic -- not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.

Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.

A commonly used pre-employment screening method--conducting credit checks--has drawn increased scrutiny in recent months. Legislatures at the state and federal levels are considering bills that would limit employer use of credit checks. Moreover, two recently-filed lawsuits, one of which was filed by the EEOC, seek to challenge the use of pre-employment credit checks in hiring decisions. 

Only four states--Hawaii, Illinois, Oregon, and Washington--currently have laws regulating employer use of credit history data. Sparked by the downturn in the economy, fourteen additional states--California, Colorado, Connecticut, Indiana, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New Mexico, New York, Pennsylvania, Texas, Vermont--are considering similar measures.

In a recent case called Southwest Regional Council of Carpenters (New Star General Contractors, Inc.), the National Labor Relations Board upheld a fairly common Union street tactic of calling attention to the Union’s dispute with a so-called “primary” employer by displaying a large banner in front of the worksite of a “secondary” employer who happens to be utilizing workers from the “primary” employer. Typically, the dispute between the Union and the “primary” employer is over the “primary” employer’s failure to use Union workers or pay Union-scale wages. By publicly advertising its dispute with banners in front of the “secondary” employer, the Union hopes to “shame” the “secondary” employer. 

In response to President Obama’s re-nomination of Craig Becker to the National Labor Relations Board, all forty-seven Republicans in the U.S. Senate submitted a letter to Mr. Obama on February 1 urging him to withdraw Becker’s nomination.  Becker’s July 2009 nomination to the Board failed in the Senate in the spring of 2010, but the President gave Becker a controversial recess appointment that allows him to serve from his swearing-in on April 5, 2010 until the end of the Senate’s 2011 session, despite the Senate’s rejection of his nomination.  President Obama’s re-nomination of Becker, if successful, would allow Becker to serve until December 16, 2014.

Thursday, February 24, 2011
12:00 p.m. - 1:00 p.m. CST

The program will provide an overview of the current state of the health care reform legislation, including the political climate, recent and expected legislative activity, litigation questioning the constitutionality of the law, and a practical look at what employers, group health plans, and health care providers should be doing now.

On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act (FSMA), which seeks to promote food safety by enacting strict safety standards in the food industry. In addition to the enactment of safety standards, Section 402 of the FSMA ensures sweeping protections for whistleblowers in the industry. The FSMA whistleblower protection applies to any “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The anti-retaliation provisions protect any employee of a covered entity who provides to the employer, the federal government, or the Attorney General of a State information that the employee reasonably believes constitutes a violation of the FSMA; testifies or is about to testify about any such violation; assists or participates in any such proceeding; or objects to or refuses to participate in any activity that the employee reasonably believes is a violation of the FSMA.

When an employer faces litigation following an unfavorable cause determination by the EEOC, it may seek to depose the EEOC investigator who made the finding. However, the scope of discovery obtainable from the EEOC is somewhat different from that available from a non-governmental third party. The EEOC may seek to quash a subpoena by asserting that the information sought is protected by the deliberative process privilege, which is available to the agency in addition to the more common protections of attorney-client privilege and work product protection.

In Byron Chapman v. Pier 1 Imports (U.S.), Inc., --- F.3d --- (9th Cir. Jan. 7, 2011), a unanimous Ninth Circuit en banc panel reversed the trial court finding that the plaintiff had standing to pursue claims for alleged barriers against Pier 1, instead holding that plaintiff’s complaint was "jurisdictionally defective" and that plaintiff "lacked standing at the outset of this litigation to assert the ADA claims."  "This Case is important because the decision helps to rein in ‘drive by ADA litigants’ who file multiple lawsuits for profit, but have no real stake in the matters presented,” said lead appellate lawyer Laura Franze, who is Co-Chair of Hunton & Williams' national employment group. “The Court adopted Pier 1’s position that -- in order to comply with Article III standing requirements --- an ADA plaintiff must not only clearly identify the alleged accessibility violations, but also connect the dots to show how he personally suffered discrimination under the ADA on account of his disability. ADA complainants cannot depend on formulaic recitation of the elements of a claim.”

On January 19, 2011, the United States Supreme Court issued a unanimous ruling in National Aeronautics and Space Administration v. Nelson, finding that questions contained in background checks NASA conducted on independent contractors are reasonable, employment-related inquiries that further the government’s interests in managing its internal operations.  Stating that “[t]he challenged portions of the forms consist of reasonable inquiries in an employment background check,” the Court reversed a Ninth Circuit decision that the questions NASA asked of the ...

On January 5, 2011, the White House announced President Obama’s intent to nominate Lafe E. Solomon to be General Counsel for the National Labor Relations Board and Terence F. Flynn to be a Board Member.