Hunton Employment & Labor Perspectives

Employees are increasingly talking about supervisors and other employees on social networking sites, and sometimes the talk can get nasty.  Complaining about co-workers and supervisors is not new.  However, distributing those complaints via the internet is.  Employers often seek to crack down on such negative talk via policies and disciplinary action.  However, Lafe Solomon, the NLRB’s acting general counsel, has publicly stated that employees have the right to communicate jointly about working conditions, regardless of whether those communications are made on social networking sites or at the company water cooler.  The NLRB will decide the validity of Mr. Solomon’s statement in connection with a recently-issued complaint.

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in hiring and employment decisions based on an individual’s genetic information.  So, for example, a company cannot refuse to hire a woman because her mother had breast cancer.  The law also prohibits requesting, requiring and/or purchasing genetic information, with limited exceptions, and prohibits disclosure of genetic information.  There are many open questions about the law, such as whether companies can have wellness programs anymore (restricted genetic information is routinely gathered as part of such programs) or whether it is a violation of the law for a supervisor to learn about genetic information by accessing an employee’s page on a social networking site, or by asking innocent questions about the employee’s health, such as “How are you?.”  The EEOC issued final regulations last week in an attempt to answer these and other questions under the law.  A short discussion follows.

It is very difficult to control everything employees say in the workplace, and to stamp out every inappropriate comment, particularly in a large workforce.  The reality is that out of place remarks happen all the time in the workplace, and every single improper comment cannot lead to legal liability for employers, or commerce would come to a complete stop.  Courts have recognized this reality and developed the “stray remarks” doctrine, which places appropriate focus on those inappropriate remarks that are made as part of an adverse employment action.  California recently declined to follow this doctrine, at least in the way other courts have.

The OFCCP is a federal agency that enforces equal employment opportunity and affirmative action laws.  Entities that fall under the jurisdiction of the OFCCP have numerous affirmative action obligations if they have contracts or subcontracts with executive branch agencies.  A Labor Department Administrative Law Judge (“ALJ”) recently issued a decision that could expand the reach of the OFCCP to include hospitals and other health care entities which provide medical services for beneficiaries of TRICARE.  See OFCCP  v. Florida Hospital of Orlando, DOL OALJ No. 2009-OFC-00002 (October 18, 2010).  Florida Hospital has appealed the ALJ’s ruling.  If the ruling stands, numerous health care providers will be subject to the OFCCP’s jurisdiction.

The ruling is especially notable considering that there has been an increase in funding of the OFCCP and an increase in hiring of OFCCP compliance officers.  With this in mind, hospitals and health care providers should review their contractual obligations to determine whether they are federal contractors or subcontractors.  Entities that are federal contractors and subcontractors must comply with numerous obligations including filing EEO-1 and Vets 100/100A reports, ensuring nondiscrimination in employment, posting certain notices, establishing affirmative action programs and conducting adverse impact analyses for hires, promotions and terminations.

On October 15, 2010, the Eleventh Circuit reversed course on a controversial decision interpreting the jurisdictional requirements of the Class Action Fairness Act of 2005 (“CAFA”).  Vacating its earlier decision that was at odds with every other circuit to consider the issue, the Court held that CAFA plaintiffs are not required to allege that at least one of the plaintiffs suffered damages in excess of $75,000.  In line with traditional CAFA interpretation, the Court held that plaintiffs need only satisfy the aggregate $5,000,000 amount in controversy requirement.

When asked on November 2, 2010, “Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements,” Georgia voters overwhelmingly answered “Yes.”

By this vote, the Georgia voters approved the Restrictive Covenants Act, a law that will dramatically alter Georgia’s legal landscape regarding non-compete agreements and other restrictive covenants.  The Act increases the enforceability of these agreements and allows courts to modify them to the extent reasonably necessary to enforce and protect legitimate business interests.  In order to become effective, Georgia residents had to amend the state Constitution -- an event that happened three days ago during Georgia’s general election.  Although there is a question regarding when the Act actually will become effective, by its own terms, it became effective on November 3, 2010.  Below is a summary of some of the key provisions of the new law.

Please join us for a complimentary webinar program on Thursday, November 4,  covering recent developments on:

• Enforcement
• "Grandfathered" Status
• The Immediate Group Health Plan Reforms, including
  • Adult Child Coverage
  • Retroactive Rescissions
  • Lifetime/Annual Limits
  • External/Internal Appeals Process
  • Preventative Services and Other Patient Protections
• W-2 Health Benefits Reporting
• FSA/HRA Reimbursement of OTC Drugs
• Early Retiree Reinsurance Program

With the closing of the first month of the federal government’s 2011 fiscal year, employers may be curious to know what the EEOC’s litigation landscape looks like.  For instance, what type of employers are being sued, and for what?  Importantly, what can employers learn from the EEOC’s litigation efforts?  A review of recently filed lawsuits that the EEOC has announced in its October press releases found that few claims have been brought under recently passed laws and only a small portion of the defending employers are Fortune 500 companies.

On October 13, Pennsylvania Governor Edward G. Rendell (R) signed the Construction Workplace Misclassification Act (H.B. 400), which sets forth a number of prerequisites for classifying construction industry workers as independent contractors as opposed to employees.  Under the Act, the consequences for misclassifying a worker as an independent contractor are severe.  The Act is part of a large trend, as similar legislation has been enacted or is being considered in a number of other states.

We’ve been talking about the “new” NLRB and its pro-union slant all year, so its latest procedural revisions should not come as a surprise to you. On September 30, 2010,  NLRB Acting General Counsel, Lafe Solomon, announced an initiative to “strengthen and streamline the Agency’s response to charges filed when employees are fired in the midst of a union organizing campaign.”