Hunton Employment & Labor Perspectives

This afternoon, the National Labor Relations Board ("NLRB") passed a resolution to amend several of its regulations that govern pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases.  The resolution, which was proposed by Board Chairman Mark Pearce, authorizes the Board to issue a final rule that would make a number of procedural changes to its pre-election procedure, including the following:

Employers need to prepare themselves for the very real possibility of immediate and significant changes in the union election process which could result in shortening the time in which elections will be conducted.  In August, we wrote about the numerous changes to the procedures governing union elections proposed by the National Labor Relations Board (“NLRB”) as part of its rulemaking process.  These proposed changes, which most prominently include reducing the amount of pre-election litigation and shortening the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed, are significant.  If adopted, these changes would both alter the landscape of secret ballot elections and place employers at a severe disadvantage by giving them much less time to respond to organizing campaigns.

Imagine the following scenario…  Twenty years ago, your Company was the employer at issue in a key Supreme Court of Virginia non-compete agreement case.  Your Company prevailed, with the Supreme Court holding that the Company’s standard non-compete agreement is enforceable under Virginia law.  Relying on that victory, your Company continues using identical non-compete language and believes that it is on firm footing in doing so; after all, the Supreme Court of Virginia - the final arbiter of the meaning of Virginia law - has ruled that your non-compete is enforceable.

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Thirty-four percent of adults in the United States presently qualify as obese under standards adopted by the Center for Disease Control.  Morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a psychological disorder are "disabilities" as defined by the Americans With Disabilities Act (“ADA”), according to the EEOC.  Lawsuits involving morbid obesity are on the rise and come in many shapes and sizes.  The most common involves a “substantially limiting” health condition such as diabetes, heart disease, and hypertension.  Others involve employers who assume an obese employee would pose a direct threat to the health and safety of him or herself or other employees if he or she were to carry out the essential functions of the job.

A little known law that permits the disabled to be paid sub-minimum wage is currently under attack. To foster employment opportunities for disabled workers in the mainstream workforce, the Fair Labor Standards Act (FLSA)  has contained, since its passage, a relatively unknown provision under Section 14(e) that allows employers to pay disabled workers sub-minimum wages as long as the wages are commensurate with the disabled worker’s productivity. The prerequisites to paying sub-minimum wage to the disabled are stringent and include:

• Preparing a job description for the employee that identifies duties and responsibilities, skills required, and specifies the days and hours of work;
• Identifying the prevailing wage for the position compiled internally or, if necessary, from similar businesses in the area;
• Determining the productivity level of the disabled employee compared to non-disabled workers (e.g., through time/motion studies); and
• Submitting the information on an application to the Secretary of Labor for a special wage permit allowing for the payment of sub-minimum wages.