Hunton Employment & Labor Perspectives

Integrity Staffing Solutions v. Busk
Oral argument was heard on October 8, 2014.  This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time.  The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.  29 U.S.C. §254(a)(2).  The district court dismissed plaintiffs’ claims, but the Ninth Circuit ruled against Integrity Solutions, a contractor to Amazon.com, holding that going through security was an “integral and indispensable” part of the shift and not a non-compensable postliminary activity.  The Second and Eleventh Circuits previously held that time in security screening is not compensable time.  Interestingly, the U.S. Department of Labor filed an amicus brief on the side of Integrity Staffing.

M&G Polymers USA v. Tackett
Oral argument was heard on November 10, 2014.  This case will resolve a circuit split on whether courts should presume that union retirees are to continue indefinitely receiving their healthcare benefits established under a collective bargaining agreement (CBA) when the CBA is silent on the duration of those benefits.  The circuit courts are split three ways on the question.  The Sixth Circuit held if the CBA is silent on the issue that means that the parties intended for the benefits to continue indefinitely.  The Third Circuit required a “clear statement” that the benefits are to continue indefinitely.  The Second and Seventh Circuits took a middle ground, deciding that there must be some language in the CBA  to “reasonably support” the indefinite continuation of healthcare benefits.

Perez v. Mortgage Bankers Ass’n and Nickols v. Mortgage Bankers Ass’n
A combined oral argument was held for these two cases on December 1, 2014.  Under the Administrative Procedure Act, when a federal government agency or department wants to establish new regulations, it must first have a period of public notice and comment as part of the process.  5 U.S.C. §§553(b), 553(c).  The question before the court in these two cases is whether an agency or department must engage in a similar notice and comment period when it wants to substantially change the interpretation of a regulation rather than changing the regulation itself.  In both cases, the D.C. Circuit ruled against the Department of Labor (DOL), rejecting the DOL’s position that its 2010 reversal of a wage and hour opinion letter issued in 2006 was an “interpretative rule” not subject to the notice-and-comment requirement. 

Young v. United Parcel Service
Oral argument was held today, December 3, 2014.  The Pregnancy Discrimination Act ("PDA") provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. §2000e(k). In this case the Court will decide whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are "similar in their ability or inability to work."  Below the district court and Fourth Circuit ruled in favor UPS, which offered a “light-duty program” held to be pregnancy-blind to persons who have a disability cognizable under the Americans With Disabilities Act, who are injured on the job or are temporarily ineligible for U.S. Department of Transportation certification. 

While this case has been ongoing, the U.S. Equal Employment Opportunity Commission (EEOC) issued new pregnancy accommodation guidelines stating that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities and a growing number of states have passed laws mandating reasonable accommodations of pregnant workers.

Mach Mining v. EEOC
Oral argument is set for January 13, 2015.  Title VII of the Civil Rights Act of 1964 states, in part, that “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  42 U.S. §2000e-5(b). The Commission is forbidden from filing suit unless within a specified period it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission." Id. §2000e-5(f)(1).  Here the Court will decide whether and to what extent a court may enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit or whether the agency has non-reviewable discretion to decide the reasonableness of settlement offers.  This case will also resolve a circuit split.  In this case, the Seventh Circuit ruled in favor of the EEOC, but the other circuits that have considered the matter have imposed a good-faith-effort standard upon the EEOC’s conciliation requirement.  

EEOC v. Abercrombie & Fitch Stores
This case is not yet fully briefed or set for argument.  Title VII prohibits employment discrimination based on religion.  42 U.S.C. §2000e-2(a)(l). It also requires employers to “reasonably accommodate” religious practices to the extent that they do not cause “undue hardship on the conduct of the employer’s business.”  42 U.S. §2000e(j).  In this case the Court will determine whether an employer can be liable for refusing to hire an applicant or discharging an employee based on a "religious observance and practice" only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.  Here, did the wearing of a head scarf (hijab), trigger a duty of accommodation?  The Tenth Circuit ruled that because religious beliefs are personal, it was incumbent on the employee to inform Abercrombie that she wore the hijab for religious reasons and of her need for an accommodation in order to trigger the duty to accommodate.   

Tibble v. Edison Int’l
This case is not yet fully briefed or set for argument.  The Employee Retirement Income Security Act of 1974 (ERISA) imposes duties on fiduciaries of an employee benefit plan to administer the plan prudently, for the exclusive benefit of the participants, and in accordance with the provisions of the plan.  29 U.S.C. §1104(a).  Plan participants can sue for breach of these duties, but must do so within six years of that data in which the breach occurred.  29 U.S.C. §§1109, 1132(a)(2), 1113(1).  The issue before the Court is whether a claim that ERISA plan fiduciaries breached their duty of prudence by offering higher-cost retail-class mutual funds to plan participants, even though identical lower-cost institution-class mutual funds were available, is barred by 29 U.S.C. §1113(1) when fiduciaries initially chose the higher-cost mutual funds as plan investments more than six years before the claim was filed.  The circuit courts are split on whether trustees have a separate duty to reconsider their past decisions under a continuing violation theory that would supersede ERISA’s statute of limitations.  The Fourth, Ninth and Eleventh Circuits have held such claims barred by the statute of limitations.  The Second and Seventh Circuits have recognized that ERISA imposes an ongoing duty to remove previously-chosen plan investments if it is not prudent to maintain them.  The solicitor general, at the invitation of the Court, filed an amicus brief, arguing on behalf of the United States that trustees of ERISA plans owe a continuing duty of prudence imposing on fiduciaries an ongoing duty to manage assets prudently, including a duty to remove previously-chosen plan investments if it is not prudent to maintain them.