Hunton Employment & Labor Perspectives

We previously reported on the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015), wherein the Court held that a court may review the EEOC’s conciliation efforts.

On remand, the EEOC renewed its motion for partial summary judgment on Mach Mining’s failure to conciliate affirmative defense. On January 19, 2016, the U.S. District Court for the Southern District of Illinois granted the motion, finding that the Supreme Court had expressly rejected Mach Mining’s position that it is entitled to receive demand calculations and additional information during the conciliation process. EEOC v. Mach Mining, LLC, No. 11-cv-00879, 2016 BL 13454 (Jan. 19, 2016).

On January 20, 2016, the U.S. Supreme Court issued its ruling in Campbell-Ewald Co. v. Gomez, affirming the Ninth Circuit’s decision that a defendant cannot moot a putative class action by offering full relief to the individual plaintiff.

In the second half of December 2015, the National Labor Relations Board (“NLRB”) issued 16 rulings on the illegality of mandatory arbitration agreements containing class and collective action waivers, even in situations where the agreements allow employees to opt out of, or into, the waiver. The NLRB continues to hold firm that these types of waivers violate the National Labor Relations Act (“NLRA”) because they infringe upon the employees’ protected right to engage in concerted activity—despite the U.S. Supreme Court’s continued favoring of class action waivers, see, e.g., DirecTV, Inc. v. Imburgia, 577 U.S. __, 135 S. Ct. 1547 (2015), and the Fifth Circuit’s express rejection of the NLRB’s position in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), and in Murphy Oil USA, Inc. v. NLRB, No. 14-60800, 2015 U.S. App. LEXIS 18673 (5th Cir. Oct. 26, 2015).

As many in the employer community are aware, late last month the United Auto Workers won the right to represent a group of maintenance employees working at Volkswagen’s auto manufacturing plant in Chattanooga, Tennessee. The union, which lost handily in an earlier bid to represent the entire plant, had asked the NLRB to sanction another election, but in a “micro-unit” of only the maintenance employees. To the surprise of many, the Board Regional Director handling the case granted the union’s request. In his view, the micro-unit was allowable under the Board’s controversial Specialty Healthcare standard.

On January 19, 2016, a series of bills in New York commonly known as the Women’s Equality Act will take effect. These laws are intended to help achieve pay equity, strengthen human trafficking laws and protections for domestic violence victims, and end pregnancy discrimination in all workplaces, by, among other things:

Please join us via webinar for a dynamic roundtable discussion with our distinguished panel of experts who will share their thoughts on changes in the law, what steps a company should take to comply with the new law and issues employers should consider as they evaluate their employee compensation.

Tuesday, January 19, 2016
11:00 a.m. – 12:00 p.m. PT
(2:00 p.m. ET – 3:00 p.m. ET)

In 2015 the National Labor Relations Board (the “Board”) issued two opinions, Cook Inlet Tug & Barge, Inc. and Buchanan Marine, L.P., each finding that tugboat captains did not qualify as “supervisors” for the purposes of the National Labor Relations Act (the “Act”). These decisions demonstrate a trend in recent Board decisions narrowing the definition of a supervisor.

Under Section 2(11) of the Act, a supervisor must have the authority to perform one of several enumerated functions, including “assigning” or “responsibly directing” employees, using “independent judgment” in the interest of the employer. In 2006, the Board issued three decisions defining these terms. Oakwood Healthcare, 348 NLRB No. 37 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006); Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).

As we previously reported, the Department of Labor (“DOL”) issued a proposed rule expected to significantly increase the number of employees who are eligible for overtime. Most notably, the proposed rule seeks to increase the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.

In a December 16, 2015 interview with Bloomberg BNA, Secretary of Labor Thomas Perez stated he was “confident” that the final rule would be “out by the spring of next year.” This prediction falls ahead of other recent DOL estimations. In its latest regulatory agenda, released in November, the DOL’s Wage and Hour Division estimated that the final rule would be published in July of 2016. And while speaking on a recent panel at the American Bar Association’s Labor and Employment Law conference in Philadelphia, Solicitor of Labor M. Patricia Smith predicted that the new rule was not likely to appear before “late 2016.”

On December 24, 2015, the National Labor Relations Board (“NLRB” or the “Board”) held that rules in Whole Foods’ General Information Guide prohibiting unapproved tape and video recording in the workplace violate Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”).

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees’ exercise of their Section 7 rights, including the right to engage in protected concerted activity. If the rule in question explicitly restricts activity protected by Section 7, it is automatically unlawful; if it does not, the rule violates Section 8(a)(1) only if: (1) the employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule was applied to restrict the exercise of Section 7 rights.