Hunton Employment & Labor Perspectives

On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”

Numerous changes have been made to the MHRA, so the Bill is worth a read.  A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

Massachusetts’ highest court last month became the first nationally to rule that many job applicants and employees who are medically certified to use marijuana cannot be automatically denied employment if they test positive for the drug.

Massachusetts is one of many states – now more than half – with statutes permitting marijuana use for medicinal purposes.  Those state laws protect users from criminal prosecution, but the large majority of the statutes (including in Massachusetts) are silent on whether employers are free to deny employment to those who test positive for “medical marijuana.”  Until now, every court to rule on the issue had held that employers may refuse to hire those individuals based simply on a positive test.

With this ruling, employers in the Bay State must revamp their thinking and possibly even hire or retain known medical marijuana users.

The New York City Commission on Human Rights recently amended its rules to establish certain definitions and procedures applying the Fair Chance Act.  The Act makes it unlawful to discriminate against job applicants and employees on the basis of criminal history, and is particularly important for employers for two reasons: (1) it applies not only to criminal background checks performed by third-party vendors but also to checks performed entirely by the company, and (2) out-of-state non-employers may be held liable for aiding and abetting violations of the Act.  For more on this latter point, read our prior post on the New York Court of Appeals opinion in Griffin v. Sirva, Inc.

The United States Court of Appeals for the Tenth Circuit recently held in Marlow v. The New Food Guy, Inc. that an employer that pays its employees a set wage over the minimum wage can retain tips for itself and does not have to share them with employees. No. 16-1134 (10th Cir. June 30, 2017).

The New Food Guy, Inc., a Colorado company doing business as Relish Catering, employed Bridgette Marlow to provide catering services. Relish paid Marlow a base wage of $12 an hour and $18 an hour for overtime. Although this was well above the $7.25 federal minimum required by the Fair Labor Standards Act (FLSA), Marlow sued Relish because it did not increase her wage with a share of the tips paid by customers. Relish moved for a judgment on the pleadings and the United States District Court for the District of Colorado held in its favor. After failing to get the Colorado court to reconsider the judgment, Marlow appealed.

Washington state has enacted a paid family leave program that will go into effect in 2020. Through this enactment, Washington has joined just four other states and the District of Columbia in requiring paid leave benefits for eligible employees. Under this new law, the state insurance program will provide private-sector employees up to 12 weeks of income for leave related to childbirth, a child’s adoption, a relative’s illness, or an employee’s own health condition. An employee’s maximum combined family and medical leave will be 16 weeks a year, with an additional two weeks in cases involving pregnancy complications. The new law also requires employers to hold the employee’s job open, regardless the size of the business, until he or she returns from leave. The employer may, however, hire a temporary worker to substitute for the employee on family or medical leave.

The U.S. Department of Labor continues to work towards dismantling the Obama administration’s overtime rule, saying that it intends to revise the controversial rule to lower the salary threshold under the Fair Labor Standards Act’s white-collar exemptions. The Obama administration’s rule sought to more than double the current salary requirement of $23,660 a year for white-collar exemptions. Though the rule was estimated to make 4 million additional workers eligible for overtime pay, it was also expected to cause employers significant financial and regulatory burdens.

Georgia’s “kin care law” went into effect on July 1, 2017.  Under this new law, Georgia employers with 25+ employees must permit employees who work 30+ hours per week to use up to five hours of their earned sick leave to take care of immediate family members.  “Immediate family member” is defined as the employee’s child, spouse, grandchild, grandparent, parent, or dependents listed on the employee’s most recent tax return.

The Department of Justice’s (“DOJ’s”) often criticized rulemaking delays have resulted in no new website accessibility rules for places of public accommodation to receive notice of and implement. Notwithstanding the obvious due process concerns raised by these delays, more and more website accessibility cases are being threatened and filed every day. Most, not unexpectedly, settle. Winn-Dixie did not, and what happened next is worth a closer look.

On June 27, President Trump nominated labor attorney William J. Emanuel to fill the last vacancy of the five seats on the National Labor Relations Board.  Emanuel is a management-side labor attorney who has practiced many years before the Board.  Emanuel has extensive experience arguing in support of employee class and collective action waivers, including involvement in multiple cases that have either been before the Supreme Court or directly led to precedent that the Supreme Court is now set to consider.

As we have said in previous posts, President Trump’s election and now ...