Hunton Employment & Labor Perspectives

On March 6, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) released guidance pertaining to employers’ responsibilities to accommodate religious dress and grooming in the workplace.  

The guidance provides explanation and analysis concerning an employer’s responsibilities under Title VII to “make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.”

President Barack Obama is expected today to direct the Department of Labor to revise its wage-payment regulations so that more workers will receive overtime compensation. 

Currently, the Fair Labor Standards Act provides an overtime exemption for categories of salaried employees who receive at least $455 a week.  President Obama intends to increase the weekly $455 salary threshold so that employers must pay affected employees a higher salary, cut their hours, or pay them overtime for work in excess of 40 hours a week.

Recently, the Maryland Senate passed a bill, called the Fairness for All Marylanders Act of 2014, that would prohibit discrimination against transgender individuals in employment and other areas.  By doing so, the state moves closer to making transgendered individuals a protected class.  The bill must still pass the House of Delegates before it may be signed into law.  Four localities in Maryland have already passed laws barring discrimination against individuals on the basis of gender identity; Baltimore City and Baltimore, Howard and Montgomery counties.  If the bill is enacted, Maryland would join over one dozen other states that have similarly banned discrimination on gender identity, including such states as California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

On Tuesday, the United States Supreme Court held that the whistleblower protections that apply to employees of publicly traded companies under Section 1514A of the Sarbanes-Oxley Act, also  extend to employees of private contractors and subcontractors that serve those public companies.

The Department of Labor’s Veterans’ Employment Training Service recently issued a proposed Rule that would change the current annual VETS-100 and VETS-100A reporting requirements.  There are several significant changes proposed by the DOL which, in a change from other regulatory developments, would actually decrease work for covered employers.

Workers at the Volkswagen AG plant in Chattanooga, Tennessee voted against union representation by the United Auto Workers. The highly anticipated 3-day secret-ballot election, supervised by the National Labor Relations Board, resulted in a 712 to 626 loss for the UAW. This particular election was significant in that a result for representation would have given unions a strategic entry point into the Southern labor market, which has long been resistant to unionization efforts. Additionally, a result for representation would have allowed for the first ever implementation of a German “works council” model for a United States employer. Under German law, a “works council” is a group of elected white-collar and blue-collar council members, separate from a union, that meets with management to discuss a wide variety of working condition issues. This model at the Volkswagen plant may have permitted the experimentation of a more collaborative system between management and workforce, as compared to the fundamentally adversarial relationship between management and traditional labor unions.

Earlier this month, the Equal Employment Opportunity Commission released its fiscal year 2013 enforcement and litigation statistical report.  Each year, the EEOC publishes a comprehensive set of data tables which contain statistics on topics such as numbers of charges filed, types of charges filed, litigation and resolution numbers, and a myriad of other tables that provide insight into the agency’s actions over the 12-month period.

Under Section 203(o) of the federal Fair Labor Standards Act (“FLSA”), an employee’s time spent “changing clothes” at the beginning or end of each workday is not compensable if such time is expressly excluded from compensable work time in a bona fide collective bargaining agreement or if there is a “custom or practice” of non-payment for such activities (or payment for a set amount of time).  On Monday, the Supreme Court clarified the definition of “changing clothes” for purposes of the FLSA, holding that a class of 800 unionized steelworkers, whose employment was covered by a collective bargaining agreement, were not entitled to compensation for time spent changing into and out of protective gear.

The Office of Federal Contract Compliance Programs (OFCCP) performs compliance audits reviewing numerous federal contractors’ affirmative action plans and practices on a yearly basis.  A number of organizations are reporting that the OFCCP will be sending out courtesy letters (known as corporate scheduling announcement letters, or “CSAL”) notifying employers that they have been selected for such an audit as early as next week.  With the changing landscape of the OFCCP’s affirmative action plan requirements and regulations, it is important that employers be on the lookout for such letters and begin preparations for the audit as soon as possible.

On November 4, the state of Texas sued the Equal Employment Opportunity Commission and Jacqueline A. Berrien (in her official capacity as chair of the EEOC), requesting a federal district court to declare invalid the EEOC’s enforcement guidance on employers’ use of arrest and conviction records and to enjoin the EEOC from using this guidance against the state and its agencies. Texas v. EEOC, No. 5:13-cv-00255-C (N.D. Tex.).

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