Hunton Employment & Labor Perspectives

On October 13, Pennsylvania Governor Edward G. Rendell (R) signed the Construction Workplace Misclassification Act (H.B. 400), which sets forth a number of prerequisites for classifying construction industry workers as independent contractors as opposed to employees.  Under the Act, the consequences for misclassifying a worker as an independent contractor are severe.  The Act is part of a large trend, as similar legislation has been enacted or is being considered in a number of other states.

We’ve been talking about the “new” NLRB and its pro-union slant all year, so its latest procedural revisions should not come as a surprise to you. On September 30, 2010,  NLRB Acting General Counsel, Lafe Solomon, announced an initiative to “strengthen and streamline the Agency’s response to charges filed when employees are fired in the midst of a union organizing campaign.”

A recent New York state trial court decision, Romano v. Steelcase Inc., et al., is representative of a recent trend of parties seeking, and courts permitting, discovery of information on social networking sites such as Facebook and MySpace.  Rejecting the plaintiff’s privacy concerns, the Romano court held that such information is discoverable because the plaintiff’s damages are at issue.  The court ordered the release of the plaintiff’s postings, pictures, and other information on the social networking sites.

On August 25, 2010, the German government approved a draft law concerning special rules for employee data protection, originally proposed by the Federal Ministry of the Interior.  A background paper on the draft law was published on August 25, 2010.

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Please join us for a complimentary webinar program on Thursday, November 4,  covering recent developments on:

• Enforcement
• "Grandfathered" Status
• The Immediate Group Health Plan Reforms, including
  • Adult Child Coverage
  • Retroactive Rescissions
  • Lifetime/Annual Limits
  • External/Internal Appeals Process
  • Preventative Services and Other Patient Protections
• W-2 Health Benefits Reporting
• FSA/HRA Reimbursement of OTC Drugs
• Early Retiree Reinsurance Program

If an employee told you that a regular customer had a habit of making inappropriate sexual comments to her, would you think that your company could be liable to your employee for the customer’s conduct?  The answer is “yes,” your company could be liable.  A recent lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) serves as a reminder that employers may be liable for the harassing conduct of not only their employees, but also, non-employees such as customers, delivery people, copier repair personnel, and independent contractors.

Hunton & Williams announced today the launch of its new website — the Hunton & Williams Health Care Reform Center, huntonhealthcarereform.com.   The website focuses on legal developments in the area of the recent federal health care reform.

Employers who hold their breath and declare an employment position as “exempt” from the Fair Labor Standards Act’s overtime previsions − all the while knowing that the exempt v. non-exempt question is a close call − should take a simple step to save themselves substantial damages should a court later rule the position non-exempt.

When entering into an employment arrangement with the employee, the employer should obtain the employee’s acknowledgement in writing that the employee’s weekly hours may fluctuate, and that each weekly portion of the employee’s annual salary will constitute payment for all hours worked during that week.

Under the Family and Medical Leave Act ("FMLA"), not only is an "employer" responsible for compliance with the FMLA, but any "successor in interest of an employer" is responsible as well. However, the FMLA does not define the term "successor in interest." The meaning of this term is crucial because an employee who has worked for an employer for less than 12 months might still be eligible for FMLA protection if that employer is considered a successor in interest to the employee’s former employer and the employee’s combined length of service for both employers is 12 months or more.

Hunton & Williams partners Laura Franze and Roland Juarez recently participated in a panel of California employment law experts to discuss various cutting edge issues in labor and employment law, including the impact of social media, new trends in non-compete agreements and trade secret protections, the ripple effect of the Ninth Circuit's ruling in Dukes v. Wal-Mart, and other related topics.

The Eleventh Circuit recently ruled that an employee had standing to seek an injunction against his employer and a labor union over alleged violations of the Labor Management Relations Act (“LMRA”) in the union organizing context.  In Mulhall v. UNITE HERE Local 355, Hollywood Greyhound Track, Inc., d.b.a. Mardi Gras Gaming, (No. 09-12683, September 10, 2010), the Eleventh Circuit reversed the lower court’s dismissal of the case, overruling its decision that the employee lacked a cognizable injury, and remanded the case for further proceedings.