Hunton Employment & Labor Perspectives

In  a 5-4 decision, the U.S. Supreme Court slammed the door shut on class arbitration unless specifically authorized by the parties.  The decision, Lamps Plus, Inc. v. Varela, reaffirmed the Court’s prior precedent that arbitration is a matter of consent, and that “[s]ilence is not enough” to infer consent to class arbitration. 

Earlier this month, the Massachusetts Supreme Judicial Court (“SJC”) settled a long-standing debate amongst opposing parties in wage-hour class actions regarding the standard for class certification. The SJC’s decision in Gammella v. P.F. Chang’s China Bistro, Inc., No. SJC-12604, 2019 WL 1575527, definitively establishes that Rule 23 of the Massachusetts Rules of Civil Procedure – viewed as a stricter standard for certification and the same civil standard applicable to most other Massachusetts state court class actions – is the applicable standard for determining class certification in wage and hour cases.   The SJC also weighed in on satisfaction of the “numerosity” requirement for certification under Rule 23 and held that a rejected offer of judgment to a named plaintiff that covers all potential damages does not cut off that plaintiff’s claims.

Background

After languishing on the docket for almost a year, the United States Supreme Court agreed today to hear three cases concerning the scope of Title VII’s protections for LGBT employees.  The Court is now set to decide two separate, but related questions: (1) whether Title VII protects against discrimination on the basis of sexual orientation; and (2) whether Title VII protects against discrimination on the basis of transgendered status.

As we previously reported here, here, and here,  there has been a wave of federal court litigation over the last two years on this topic, with various ...

The Department of Labor earlier this month proposed employer-friendly amendments to its rules regarding joint employer liability under the Fair Labor Standards Act.

In its Notice of Proposed Rulemaking, the DOL proposed the adoption of a four-factor test to assess joint employer status under the FLSA.  The test would consider an employer’s actual exercise of significant control over the terms and conditions of an employee’s work, rather than attenuated control or contractually reserved control that goes unexercised.

Hunton Andrews Kurth LLP is pleased to announce the addition of Christopher M. Pardo and Anna L. Rothschild to its national labor and employment practice. Both are based in the firm’s Boston office.

In a 3-1 decision released last week, the National Labor Relations Board reversed decades of precedent regarding a successor employer’s bargaining obligations following the purchase of an entity with a unionized workforce. The Board’s decision in Ridgewood Health Care Center significantly reined in the application of the “perfectly clear successor” doctrine, which requires a successor employer to maintain the status quo of its predecessor employer’s terms and conditions of employment.

Each year, the California Chamber of Commerce (“Chamber”) identifies proposed state legislation that the Chamber believes “will decimate economic and job growth in California.”  The Chamber refers to these bills as “Job Killers.” In March, the Chamber identified the first two Job Killers of 2019: AB 51 and SB 1. Both bills would negatively impact retailers in California. You can view the Chamber’s Job Killer site here.

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Federal Rule of Civil Procedure 23(f) governs petitions for interlocutory appeals of orders that grant or deny class certification and requires that a petition for permission to appeal must be filed “within 14 days after the order is entered.” It makes no mention of motions for reconsideration.

California has long been considered one of the most – if not the most – protective states of employee rights.  This continues to ring true, as the legislature has proposed another law aimed at prohibiting employers from requiring employees to sign mandatory arbitration agreements as a condition of employment.   In essence, Assembly Bill 51 (AB 51), would prevent employers from requiring their employees to bring all employment related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.

Last August, we reported on OSHA’s proposed rulemaking regarding electronic submissions of workplace injuries and illnesses in our blog entitled, “OSHA Issues Proposed Rule Regarding Electronic Submission Requirements.” OSHA has since issued a final rule which became effective on February 25, 2019.

The new rule rescinds the requirement that employers with 250 or more employees, or employers in certain high-hazard industries, electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  Affected employers must still maintain Forms 300 and 301 on-site and make them available for OSHA inspection, if requested.  Employers covered by the rule now only are obligated to submit Form 300A (Summary of Work-Related Injuries and Illnesses) annually.

Today, New York City’s anti-sexual harassment training law goes into effect. Under the new law, private employers must provide annual “interactive” sexual harassment training to their entire workforce, including some independent contractors and part-time employees. The NYC law is similar—but not identical—to a recently enacted New York state law mandating sexual harassment training.