Hunton Employment & Labor Perspectives

Jurisdiction

Jurisdiction may be the most important factor organizations should take into consideration when offshoring.  Some countries do not recognize certain U.S. legal doctrines, such as confidentiality agreements, and without proper jurisdiction an organization may be unable to enforce its contract with a vendor.

When selecting an offshore country, organizations should consider whether the country permits a choice of law provision which would allow courts to apply U.S. law.  If the country permits choice of law provisions, the provision should be well defined in the contract so that there is no ambiguity.  Organizations should also consider working with counsel in the offshore country to assist with legal intricacies, even if a United States choice of law provision is permissible.

Plan sponsors now have additional answers to some of their questions about the effect of the Windsor decision on retirement plans. Notice 2014-19, released on April 4, 2014, provides guidance concerning the application (including retroactive application) of Revenue Ruling 2013-17 and the June 26, 2013, Supreme Court decision that invalidated Section 3 of the Defense of Marriage Act (DOMA).

On April 8, 2014, in recognition of National Equal Pay Day, President Obama continued to advance his wage equality agenda by focusing on wage transparency through Executive Order on Non-Retaliation for Disclosure of Compensation Information (“Executive Order”) and a Presidential Memorandum entitled "Advancing Pay Equality Through Compensation Data Collection" (“Presidential Memorandum”).

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces.  One of the Board’s most noteworthy – and controversial – areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.  Last week, for the first time, a U.S. Court of Appeals agreed with the Board that certain confidentiality restrictions can have such an effect.

On February 14, 2014, San Francisco passed the San Francisco Fair Chance Ordinance and became the latest national municipality to “ban the box” and limit the use of criminal background checks in employment hiring decisions.  The deadline for San Francisco employers to comply with the San Francisco Fair Chance Ordinance is August 13, 2014.  The “ban the box” campaign continues to gain momentum – San Francisco joins other cities (Buffalo, Newark, Philadelphia, and Seattle) and states (Hawaii, Massachusetts, Minnesota, and Rhode Island) who do not allow employers to ask ...

On March 10, 2014, the Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) issued joint guidance regarding the use of background checks.  The FTC, which enforces the Fair Credit Reporting Act, monitors compliance with how background checks are conducted.  The EEOC, which enforces federal laws against discrimination, seeks to ensure that the use of background checks does not disparately impact protected groups.

On March 26, 2014, in a novel and potentially ground-breaking decision, National Labor Relations Board (“Board”) Region 13 Director Peter Sung Ohr ruled that Northwestern University football players who receive athletic scholarships are “employees” of the University and are entitled to unionize.  Ohr ordered a secret ballot election to be held for eligible players to vote on whether they want to be represented by the College Athletes Players Association, the Petitioner in this case, for collective bargaining purposes.

The national trend in increased workplace regulation continues on April 1, as New York City’s Earned Sick Time Act goes into effect. 

Although most large employers provide paid sick leave to employees, those employers in Gotham now don’t have a choice. The requirement applies to  any employer with at least five employees.

On February 25, 2014, National Labor Relations Board (“NLRB” or “the Board”) General Counsel Richard F. Griffin issued Memorandum GC 14-01 to outline the agency’s enforcement priorities for the coming year.  The memorandum, which requires regional offices to submit matters of special interest to the Board’s Division of Advice for guidance on how to proceed, groups those priorities into three categories: (1) matters that involve General Counsel initiatives or areas of law and labor policy that are of particular concern to his office; (2) matters that involve difficult legal issues or areas of law in which governing precedent is unclear; and (3) an updated and expanded list of case-handling matters that have traditionally been submitted to the Division of Advice.

In prior posts, we reported on the U.S. Department of Labor’s attempt to narrow the “advice exception” to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act.  Most recently, the DOL had indicated its intent to issue a final rule in March of 2014 that would narrow the well-known “advice exception” to the reporting requirement to require reporting of any consulting relationships where the consultant engages in actions or communications that would indirectly or directly persuade employees regarding organizing.  Since it was first proposed in 2011, the anticipated final rule has drawn criticism from employers and the attorneys who provide valuable legal advice to employers in the context of union organizing.  If adopted, the rule would have a significant impact on employers because they would no longer be able to avoid reporting third-party consulting arrangements by isolating consultants from direct employee interaction.  The rule could also interfere with an employer’s ability to obtain legal advice from their attorneys due to the concern that both the employer and the attorneys may incur reporting obligations as well.