Hunton Employment & Labor Perspectives

In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims.  The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.

Facts and Procedural History

Last month, the National Labor Relations Board held that employers do not have to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities.  See UPMC Presbyterian Hospital, 368 NLRB No. 2 (June 14, 2019) (“UPMC”).  In so holding, the Board overruled decades-old precedent.

UPMC specifically involved “public spaces,” a sometimes-gray area in union organizing.  Public spaces are somewhat-private areas on employer property that are also open to the public, such as employee cafeterias or snack bars, as compared to fully-public areas such as retail floors.

Earlier this year, Dallas passed an ordinance requiring all private employers to provide paid sick leave to employees. The Dallas ordinance follows similar laws passed recently in both Austin and San Antonio.

While a district court held the Austin ordinance unconstitutional and preempted its enactment pending a forthcoming Texas Supreme Court decision, the Dallas Ordinance is still set to go into effect August 1, 2019 for businesses with more than five employees (while those with five or fewer have until August 1, 2021 to comply).

As we previously detailed, the Virginia General Assembly enacted an employment records disclosure law requiring employers to furnish Virginia employees certain personnel documents upon request.  That law took effect on July 1, 2019.

California employment laws are constantly evolving, making it a challenge for companies doing business in the Golden State to keep up with recent developments and remain compliant. View this complimentary video where Hunton Andrews Kurth partners Emily Burkhardt Vicente and Amber Rogers discuss “Five Recent Developments in California Employment Law You May Have Missed.”

The Federal Trade Commission (“FTC”) recently rescinded several Model Forms and Disclosures related to the Fair Credit Reporting Act (“FCRA”), determining they are no longer necessary.  As we wrote about last Fall, [“Fall” hyperlink to CEJ and RTQ HELP blog article dated September 21, 2018] this change is the result of the Consumer Financial Protection Bureau (“CFPB”) issuing its own model forms and disclosures.  The FTC forms that have been rescinded and the corresponding CFPB forms that now apply are as follows:

Claims under California’s Private Attorneys General Act (PAGA) are recently much in vogue.  With the proliferation of arbitration agreements and class action waivers, plaintiffs’ attorneys all over California been using PAGA claims – which cannot be waived in an arbitration agreement – as a preferred vehicle to pursue representative wage-and-hour lawsuits against employers.

While there are many unresolved issues relating to the litigation of PAGA lawsuits, California courts are making clear that a PAGA lawsuit will fail if the plaintiff does not send a compliant pre-filing notice to the Labor and Workforce Development Agency (LWDA) prior to the elapse of the statute’s 1-year limitations period.

In a statement issued last week, Massachusetts Governor Charlie Baker, along with state house and senate leadership, announced that lawmakers had agreed to implement a three-month delay to the Massachusetts Paid Family and Medical Leave (PFML) law, which Hunton Andrews Kurth, LLP previously reported about here. In the joint statement, the leaders explained:

To ensure that businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three-month delay to the start of the required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.

The Board’s recent decision in Merck, Sharp, & Dohme Corp., 367 NLRB No. 122 (May 7, 2019)  highlights the differences that can arise as a result of the collective bargaining process in the terms and conditions of employment for employers with a divided workforce of non-union and union-represented employees.

In Merck, the Board majority reversed the Administrative Law Judge’s ruling that the employer had violated Section 8(a)(3) and (1) by offering a new, one-time paid holiday, “Appreciation Day” to all of its non-union employees to the exclusion of its union-represented employees.

Here are some factual background and key points of the NLRB’s decision in Merck:

We previously posted on the unfortunate ruling in March 2019, when a Federal Court reinstituted the “Component 2” wage reporting in the annual EEO-1 Report.  The highly controversial requirement – that employers annually report, to the government, W-2 earnings and hours worked for all employees – had been proposed in 2016, but stayed by the Office of Management and Budget (OMB) in 2017.