Hunton Employment & Labor Perspectives

Pundits have written much about the Affordable Care Act’s forthcoming Health Insurance Exchanges, but they have paid little attention to employers’ obligations to notify employees of those Exchanges.  The state-based Exchanges, also known as the Health Insurance Marketplace, are expected to go into effect on January 1, 2014, with open enrollment beginning on October 1, 2013.  Employees may purchase health insurance through these Exchanges.

NLRB Asks Supreme Court To Review Decision That Struck President Obama’s Recess Appointments

On April 25, 2013, the National Labor Relations Board (“NLRB” or “Board”) filed a petition for a writ of certiorari asking the United States Supreme Court to review the decision in NLRB v. Noel Canning in which the D.C. Circuit Court of Appeals held that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional.  The Court ruled President Obama’s appointments were not valid because the Senate was not in “the Recess” at the time he made them and thus, the Board lacked the required quorum needed to conduct business.  Under the Recess Appointments Clause of the Constitution, the President is able to bypass Senate approval and fill executive vacancies “that may happen during the Recess of the Senate.”  The Court held “the Recess” means the intersession break between annual Senate sessions, not any intrasession break during an ongoing session.  It also held an executive vacancy does not “happen” during the Recess unless the office actually becomes vacant during such a recess.

For 60 years psychiatrists and other mental health professionals have been using the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” (DSM) as the “bible” for diagnosing mental diseases and disorders.  Health and disability insurance providers  use the DSM in deciding what conditions and treatments to cover, as do government agencies in determining eligibility for benefits and services.  These and other factors make the DSM an unusually powerful document.

The latest DSM revision (the DSM-5) is set for release later this month.   It creates several new mental disorders and broadens the definition of a number of existing ones.  These changes will affect employers in a variety of ways, from expanded protection under the ADA and FMLA to increased benefit costs.  

On May 7, 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit invalidated a rule promulgated by the NLRB that would have required employers to post notices of employee’s rights under the National Labor Relations Act (“NLRA”) in the workplace.  According to the Court, employers have the right not to speak, and thus can be silent, on these issues.  Another case regarding the same issue is currently pending on appeal in the Fourth Circuit.

In Holton v. Physician Oncology Services, LP, et al., Case No. S13A0012 (May 6, 2013), the Georgia Supreme Court limited the use and application of the inevitable disclosure doctrine by declining to recognize it as an independent cause of action. 

The inevitable disclosure doctrine allows an employer to restrict former employees from working for a competitor by demonstrating that the former employees will necessarily rely upon knowledge of the employer’s trade secrets in performing their new job duties. 

The Equal Employment Opportunity Commission (“EEOC”) announced that it won what it describes as a “historic” verdict last week when an Iowa federal jury awarded $240 million to a group of intellectually disabled plant workers who were subjected to disability-based discrimination and harassment.  The award is the largest in the agency’s history.  The EEOC’s General Counsel, David Lopez, remarked that the verdict is “one of the EEOC's finest moments in its ongoing efforts to combat employment discrimination.”

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations.  Banner Health held that to require confidentiality of investigations, an employer must show more than a generalized concern with protecting the integrity of its investigations.  Rather, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”