Hunton Employment & Labor Perspectives

The U.S. Department of Labor (DOL) recently announced that it will propose new regulations that potentially could expand employers’ and labor consultants’ reporting obligations under Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). This may require employers to disclose some information that currently is not reportable, such as information related to advice from labor consultants and perhaps even attorneys.

The Office of Federal Contract Compliance Programs (OFCCP),  recently signaled that it may conduct more evaluations of multi-facility employers.  Its recently revised standard Corporate Scheduling Announcement Letter (CSAL) describes new and different practices that will accompany compliance audits of federal contractors.

In the past two months, both the House and Senate have proposed legislation that would extend the COBRA subsidy for health insurance created by the America Recovery and Reinvestment Act of 2009 (ARRA). The ARRA subsidy will begin to expire on December 1, 2009 without government action.  As the subsidy expires, unemployed Americans receiving the subsidy will see their COBRA premiums increase from 35% to 100% of the premium cost.

Earlier this year, the U.S. Supreme Court issued a decision in Ashcroft v. Iqbal that clarified and, indeed, amplified the pleading requirements in federal lawsuits.  Essentially, the decision held that a complaint is insufficient to state a claim if it merely states legal conclusions and does not include specific factual allegations supporting the claim.

Last week, Secretary of Labor Hilda Solis announced the Department of Labor's planned launch of an ambitious new public awareness campaign called "We Can Help."  The campaign, set to debut in early 2010, is designed to help inform workers about their rights under federal wage and hour laws.

According to data from BNA PLUS, unions have won more than 73% of the elections in which they participated in the first half of 2009. This is up from 66% for the same time period in 2008. The Teamsters led the way by participating in 164 elections and winning 70% of them, while the SEIU was second, winning 75% of 44 elections.  Although the number of elections conducted by the NLRB thus far in 2009 is down from the number in 2008, the union's win rate in each year of this decade has been over 50% and getting better as the decade progresses. The numbers out today indicate that currently unions are ...

In one of the largest back pay awards in the agency's history, the National Labor Relations Board (NLRB) concluded a settlement with five Michigan beer distributors that required the companies to pay $41 million in back pay to employees and the Teamsters. Findings from an ALJ, supported by the NLRB and the 6th Circuit Court of Appeals, concluded that the five companies colluded to systematically oust the union by separately engaging in bad faith bargaining, unlawfully declaring impasse, and then implementing their respective labor contracts with substantially lower wages and benefits.

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) covering employment goes into effect on November 21, 2009.  GINA, which was enacted in May 2008, prohibits employers from discriminating on the basis of genetic information and from intentionally acquiring genetic information from employees or applicants.  The Act also imposes strict confidentiality requirements on employers, and requires them to segregate and maintain all such information in compliance with the Americans with Disabilities Act.

On November 5, 2009, the U.S. Senate Committee on Health, Education, Labor, and Pensions held an initial hearing on the Employment Non-Discrimination Act of 2009, S. 1584 (“ENDA” or “the Act”).  ENDA would prohibit discrimination in employment on the basis of sexual orientation and gender identity, which currently are not prohibited factors under federal law or under the laws of a majority of states.

In California, employers litigating claims for misappropriation of trade secrets must identify those trade secrets with “reasonable particularity” before pursuing discovery.  See Cal. Civ. Proc. Code § 2010.210.  There is frequently an early litigation battle over what "reasonable particularity" means.  Earlier this month, a California Appellate Court recently analyzed this principle in Perlan Therapeutics, Inc. v. Superior Court (Nexbio, Inc.).  The Court initially emphasized the trial court’s broad discretion under section 2019.210.  The Court also warned against the use of catch-all language in the identification statement to preserve the ability to add additional trade secrets to the list after the plaintiff has commenced discovery.