Hunton Employment & Labor Perspectives

As the national debate regarding rights for same sex couples continues, more and more states are granting marital rights to members of the same sex.  Although we are only in the second quarter of 2015, five states have either passed legislation or have high court rulings that expand the rights of same sex couples.  And, in the coming weeks, the U.S. Supreme Court will rule upon issues of marriage equality in Obergefell v. Hodges, eventually rendering a decision that may have significant impact on both federal and individual state laws.

The Equal Employment Opportunity Commission (“EEOC”) has issued proposed rules (“ADA Proposed Rules”) on the extent to which employers may offer incentives to promote participation in wellness programs without violating the Americans with Disabilities Act (“ADA”). The ADA Proposed Rules apply if a wellness program includes disability-related inquiries or medical examinations, including inquiries or examinations that are part of a health risk assessment.  Health risk assessments are reported to be the most common form of incentivized employee wellness programs.¹ Thus, many employers would likely be impacted by these new rules if finalized.

Under the National Labor Relations Act (“Act”), employers usually may not discipline employees for engaging in certain collective or concerted activity, including comments regarding terms and conditions of employment, unless the employee’s behavior is so outrageous that it loses the protection of the Act.  But how far can employees push the boundary before their conduct will be found indefensible?

As expected, the implementation of the NLRB’s ambush election rules has spurred unions to initiate organizing campaigns across the country.  As discussed in our previous posts and a webinar hosted by the Firm, the new rules make it easier for unions to organize employees through an expedited election process, and makes it possible for elections to be held 11 to 12 days after the petition has been filed.  Recently released data confirms that a significant increase in petition filings occurred after the April 14, 2015 implementation date of the new ambush rules.  To summarize, an average of approximately 42 petitions were filed per week for the month of March to April 13th.  From April 13th to the beginning of May, the average number of petitions filed per week shot up to approximately 60.  Such averages are deceptive, however, in that the number of petitions filed per week has increased every week since the implementation date, rising to nearly 80 petitions filed for the last week of April.

The Affordable Care Act (ACA) requires the state and federal health care exchanges to notify employers if an employee has been determined to be eligible for a premium tax credit or cost-sharing reduction for exchange coverage. The notices are issued for those individuals who have been determined to be eligible for such a subsidy. As employers begin receiving notices, they should consider how best to track this information and whether it would be worthwhile to appeal the subsidy eligibility determinations where the information is incorrect.

The Fourth District California Court of Appeal recently held that a Department of Corrections employee’s claim that he was constructively discharged after being discriminated against on the basis of his religion—“Sun Worshipping Atheism”—was properly dismissed.  Marshel Copple is the founding and only member of a religion he calls Sun Worshipping Atheism, the core tenets of which include: praying in the sun; taking in fresh air on a daily basis; sleeping at least 8 hours per day; eating and drinking when necessary; frequent exercise; daily rest; and engaging in frequent social activities.

On April 1, 2015, the U.S. Court of Appeals for the Seventh Circuit decided Alvarado v. Corporate Cleaning Serv., Inc., 2015 WL 1456573 (7th Cir. Apr. 1, 2015), an important decision interpreting the Fair Labor Standards Act’s overtime requirements.  The plaintiffs in the case were twenty-four (24) window washers employed by a company servicing commercial skyscrapers in the Chicago area.  The plaintiffs argued they had not been paid certain overtime wages under the Act.  The company, CCS, admitted it had not paid overtime, but argued that an exemption applied in the case to the FLSA’s overtime requirements.

On April 3, 2015, Virginia Governor Terry McAuliffe signed an Executive Order that “bans the box” and prohibits Virginia agencies, boards, and commissions from asking questions about an applicant’s criminal history on employment applications.

The government has continued to issue a number of regulations and other guidance on the Patient Protection and Affordable Care Act (PPACA) and related health care laws, including the following:

• Final regulations on the use of “bona fide orientation periods” in coordination with waiting periods for health care coverage;
• IRS forms and instructions regarding reporting of health care coverage by health plans and large employers;
• Updated proposed rules on the required Summary of Benefits and Coverage;
• Guidance regarding use of “skinny plans”; and
• Preliminary guidance on ...

On April 1, 2015, the US Securities and Exchange Commission brought its first enforcement action against a company for asking employees to agree to confidentiality terms during internal investigations.

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