Hunton Employment & Labor Perspectives

The National Labor Relations Board announced its Final Rule governing union representation case procedures, claiming that such Rule aims to “remove unnecessary barriers to the fair and expeditious resolution of representation questions.”  Specifically, the Rule claims to “streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”

In Purple Communications, Inc., a divided National Labor Relations Board held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time.  In making this determination, the Board reversed its divided 2007 decision in Register Guard, which held that employees have no statutory right to use their employer’s email systems for Section 7 purposes.

On December 9, 2014, the Supreme Court ruled in Integrity Staffing Solutions, Inc. v. Busk that the time spent waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act (“FLSA”).  U.S. Supreme Court, No. 13-433.  The case involved hourly temporary staffing-agency warehouse workers who retrieved products from warehouse shelves and packaged the products for delivery to Amazon.com customers.  Before leaving the warehouse each day, workers were required to undergo a security screening involving the removal of wallets, keys, and belts from their persons and passing through metal detectors.

The Department of Labor has announced the release of a Final Rule implementing Executive Order 13672, which prohibits discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. Executive Order 13672, signed by President Obama on July 21, 2014, amended Executive Order 11246 by adding sexual orientation and gender identity to the protected categories provided in the latter EO. The Final Rule will be effective 120 days after the date of its official publication in the Federal Register and will apply to government contracts entered into or modified after the effective date.

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.

Last month, the voters of Massachusetts passed Ballot Question 4, which entitles all Massachusetts employees to earn and use sick leave (time).  In doing so, Massachusetts became the third state to guarantee sick leave, following California and Connecticut.  The Massachusetts law takes effect on July 1, 2015.

On November 12, 2014, the Ninth Circuit held  that sufficient specificity in pleading is required under the Fair Labor Standards Act (FLSA) in Greg Landers v. Quality Communications Inc.  The Ninth Circuit affirmed the dismissal of a proposed overtime class action.  While this was an issue of first impression for the Ninth Circuit, the decision falls in line with similar rulings made by the First, Second and Third Circuits and disagrees with the Eleventh Circuit holding that conclusory allegations that merely recite the statutory language are adequate.

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers.

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On November 6, 2014, the Eleventh Circuit reined in the Equal Employment Opportunity Commission’s (EEOC) use of a broad administrative subpoena in an investigation of an individual charge of discrimination.  The case is EEOC v. Royal Caribbean Cruise Lines Ltd.

On October 1, 2014 the Los Angeles City Council voted again to require large hotels to pay workers a minimum wage of $15.37, exclusive of gratuities, bonuses, or service charge distributions after first passing the bill 12-3 on September 24, 2014.  (A second vote was required under Los Angeles City Council rules because the first vote was not unanimous.)  Assuming Mayor Garcetti signs the bill, which he has reportedly already promised to do, the bill will go into effect on July 1, 2015, applying first to hotel employees at hotels with 300 or more guest rooms and then, on July 1, 2016, expanding its reach to hotel employees employed by hotels with 150 or more guest rooms.