Hunton Employment & Labor Perspectives

The Sixth Circuit recently affirmed a district court’s summary judgment decision finding that an employer, Plastipak Holdings, Inc., Plastipak Packaging, Inc., Plastipak Technologies, LLC, Plastipak, and William C. Young (collectively, “Plastipak”) properly had paid employees using the “fluctuating workweek” method and dismissing plaintiffs’ claims for underpayment of wages under the Fair Labor Standards Act (“FLSA”).

The National Labor Relations Board continues to undo its actions overruling the joint employer test of Browning-Ferris Industries, 362 NLRB No. 186 (2015).  Earlier this week the Board vacated its decision in Hy-Brand Industries, the case which had overruled Browning-Ferris.

Shortly after the original Hy-Brand decision, the Board had asked the U.S. Court of Appeals for the District of Columbia Circuit to remand the Browning-Ferris case to the Board.  At the time, the Browning-Ferris case was pending before the court of appeals on the Board’s petition for enforcement and Browning-Ferris’s petition for review, and had been fully briefed and argued.

This week the LGBT community and its supporters won an important case in the Second Circuit Court of Appeals.  In Zarda v. Altitude Express, the Court ruled that Title VII’s ban on sex discrimination extends to same-sex, or “anti-gay,” discrimination.  In that case, Donald Zarda, a gay skydiving instructor, alleged he was unlawfully fired after a customer complained about him disclosing his same-sex orientation.

On February 1, 2018, the United States District Court for the Eastern District of Pennsylvania dismissed an overtime class action suit brought on behalf of a group of former democratic campaign workers for their work during the 2016 presidential election.  See Katz v. DNC Services Corp., Civil Action No. 16-5800 (E.D. Pa. Feb. 1, 2018).  In dismissing the overtime suit, the Court relied on an often-overlooked defense to the Fair Labor Standard Act (“FLSA”) – namely, that the FLSA only covers employees engaged in interstate commerce as opposed to employees engaged in purely local activities.

We previously informed you of the National Labor Relations Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in which the Board  overruled the controversial joint employer test which it had announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015).

On February 26, 2018, the Board entered an order vacating the Hy-Brand decision, 366 NLRB No. 26 (2018).  It did so in light of a determination by the Board’s Designated Agency Ethics Official, that Board Member William Emanuel “is, and should have been ...

Last week, the United States Supreme Court released its decision in Digital Realty Trust v. Somers, where the Court unanimously adopted a narrow reading of the Dodd-Frank Act’s anti-retaliation “whistleblower” provision.  The Court held that the provision applies only to individuals who report securities violations directly to the Securities and Exchange Commission.

The case involved Paul Somers, a former employee of Digital Realty Trust, who alleged that the company terminated him after he internally reported suspected violations of securities law by the company.  Somers, however, never reported any of the suspected securities violations to the SEC.

In a highly anticipated opinion, a Federal Judge in California ruled in favor of GrubHub, an internet food ordering service, finding it properly classified a delivery driver as an independent contractor.

In Lawson v. GrubHub, the plaintiff, a delivery driver, alleged that GrubHub violated California’s minimum wage, overtime and employee expense reimbursement laws by misclassifying him as an independent contractor when he was really an employee.  He brought the case on behalf of himself and as a representative action pursuant to the California Private Attorney General Act (PAGA).

On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”

On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620).  Title III of the Americans with Disabilities Act was enacted to ensure access for persons with disabilities to public accommodations.  Too often however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access.  By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses.

We are excited to announce the expansion of our national labor and employment practice with the addition of partners Michele J. Beilke and Julia Y. Trankiem and two associates in Los Angeles.