Hunton Employment & Labor Perspectives

Yesterday, the Department of Labor (“DOL”) issued a proposed rule that is expected to significantly increase the number of employees who are eligible for overtime.  The proposed rule increases the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.  The rule applies to the FLSA’s executive, administrative, professional, and computer employees exemptions, but not the outside sales exemption which does not have a salary basis requirement.

A recent decision from the California Labor Commissioner’s Office found that a former Uber driver was an employee of the company, not an independent contractor as the firm has labeled its motorists.  The implications for Uber, as well as other companies with similar business models, could be far-reaching.

As we previously discussed, employers continue to grapple with the workplace effect of medical marijuana laws (enacted in twenty-three states and the District of Columbia), as well as the recreational marijuana laws of Colorado, Washington, Oregon and Alaska. Notwithstanding these laws, marijuana remains illegal under the federal Controlled Substances Act, and all courts to have addressed the issue thus far have held that employers may continue to insist on a drug-free workplace, conduct drug tests, and take adverse employment action based on positive drug tests. 

Recent guidelines have been issued by the Department of Labor in connection with President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673.  Interested parties will have until July 27, 2015 to submit written comments to the Regulatory Secretariat for consideration before the proposals are finalized.

State legislation concerning employee privacy in social media continues to grow with six states passing such legislation in 2014, including Tennessee, Louisiana, New Hampshire, Oklahoma, Rhode Island, and Wisconsin. As discussed here, these laws focus on an employee’s right not to disclose personal social media passwords to an employer, as well as prevent employers from requiring access to content not available to the general public.

The Supreme Court recently held in EEOC v. Abercrombie & Fitch Stores, Inc. that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even where the applicant has not informed the employer of his need for an accommodation.

The U.S. Supreme Court refused on Monday to take up a challenge to the California Supreme Court’s holding that California Private Attorney General Act (“PAGA”) claims cannot be waived in employment arbitration agreements containing a class action waiver.

As we continue our discussion of the NLRB’s “quickie election” rules that went into effect on April 14, please join Hunton & Williams LLP for a complimentary interactive webinar.

The United States District Court for the Western District of Texas has just denied one of the employer community’s challenges to the NLRB’s ambush election rules.  As covered previously, the Board’s new election rules, which went into effect on April 14, 2015, shorten the potential timeline for elections to be held 11 to 12 days after a union representation petition has been filed.  Several business groups have challenged the validity of the ambush rules in the federal courts. 

The Supreme Court’s decision in Mach Mining, LLC v. EEOC provides for judicial review with respect to the EEOC’s conciliation efforts in claims of unlawful discrimination against an employer. In Mach Mining, the EEOC filed suit against Mach Mining, LLC on the basis of sex discrimination, specifically, with regard to Mach Mining’s hiring practices. After the EEOC determined that reasonable cause existed as to Mach Mining’s unlawful hiring practices, the EEOC sent a letter to Mach Mining inviting the employer to participate in an informal conciliation proceeding with the plaintiff to attempt to rectify the charge. In its letter, the EEOC notified Mach Mining that an EEOC representative would be contacting the respondent in order to begin the informal conciliation process regarding the charge. Roughly a year later, the EEOC sent a second letter to Mach Mining, stating it had determined that conciliation efforts had been unsuccessful.  The EEOC then filed suit in federal court.