Hunton Employment & Labor Perspectives

In a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that whether a plaintiff with a claim under the Family and Medical Leave Act (“FMLA”) can recover front pay (and how much) is a question for a judge to decide, not a jury.  Under some statutes, such as Title VII of the Civil Rights Act, courts have express discretion to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement … or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g).  It is well established under Title VII that a court can decide to substitute front pay for reinstatement in some instances, such as when there is a significant degree of animosity between the parties or when reinstatement could displace other employees.

In a move sure to draw fire from Republican lawmakers and segments of the business community, President Obama on Saturday issued recess appointments to place controversial candidates on the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”).  Presidents have constitutional authority to fill vacancies without the advice and consent of the Senate when Congress is in recess, as it is now.

Employers striving to comply with federal and state wage laws may soon have one more thing to worry about -- local “wage theft” laws.  In Florida, the Board of Commissioners for Miami-Dade County recently approved an ordinance that prohibits private sector employers from failing to pay employees all wages owed and gives the county authority to intervene and seek remedies on behalf of employees.  San Francisco already has a wage theft ordinance, and Los Angeles and New Orleans are considering similar measures.

Last week, the AFL-CIO commenced a major new attack on the nation's largest banks and to push for a new "transaction tax" to raise money for a national jobs program.  The labor federation's "Call to Action on Jobs" Campaign, which formally began on March 15th, is expected to target the nation's six largest financial institutions.

Bending over backwards to help an employee with a disability can leave the employer in an awkward position.  With changes to the Americans With Disabilities Act (“ADA”) and its regulations last year, employers may be more likely to offer accommodations.  More conditions will be deemed to fall within the definition of a disability, and employers likely will err on the side of providing accommodations.  However, employers should continue to exercise sound judgment in deciding what accommodations to offer.

For those who thought the proposed Paycheck Fairness Act had faded away, here is a wake-up call.  After more than a year since the bill was passed by the House of Representatives and introduced in the Senate, the Senate Committee on Health, Education, Labor and Pensions is holding a new hearing on March 11 to focus on equal pay issues.

A new proposed rule by the Equal Employment Opportunity Commission provides new guidance in determining what constitutes a “reasonable factor other than age” in defending against a claim under the Age Discrimination in Employment Act.  The EEOC introduced the proposed rule on February 18, 2010 and is currently soliciting comments until Monday, April 19, 2010.

Both the Third and the Seventh Circuits are set to address the issue of whether collective actions under the Fair Labor Standards Act are compatible with class actions under state wage and hour laws.  In the Third Circuit, briefing is underway in Parker v. NutriSystem, Inc., No. 09-3545.  And argument is set in the Seventh Circuit for April 2, 2010 in Ervin v. OS Restaurant Servs., Inc., No. 09-3029.  Both courts will address what some have called the “inherent incompatibility” of FLSA collective actions and state law wage and hour class actions that are pursued in the same case.

California employers should take note that this week, the California Supreme Court limited benefits offered under California's kin care laws and held that kin care benefits do not apply to uncapped sick leave plans.