Hunton Employment & Labor Perspectives

The Internal Revenue Service (“Service”) has recently issued guidance promised in the wake of the Supreme Court’s decision in United States v. Windsor. (See the IRS news release containing links to Revenue Ruling 2013-17 and frequently asked questions). Building on the precedent set in Revenue Ruling 58-66 that addressed the treatment of common law marriages (which are recognized in some states but not in others), the Service has ruled that, for purposes of federal tax law, an individual’s spouse will be determined by the law of the state in which the marriage was celebrated.

On August 9, Secretary of Labor Thomas Perez issued an internal memo calling for the implementation of the Supreme Court’s landmark decision in United States v. Windsor.  In that case, the Court held that section three of the Defense of Marriage Act (“DOMA”), which limited the definition of marriage to “a legal union between one man and one woman,” violated due process and equal protection principles embodied in the Fifth Amendment.  The internal memo stated that the Department of Labor (“DOL”) will be removing references to DOMA from its correspondence, and will be working to ensure the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (“FMLA”).

In an Advice Memorandum released last month, the National Labor Relations Board (“NLRB”) Associate General Counsel’s office found that portions of a social media policy violated Section 7 of the National Labor Relations Act, which protects employees’ rights to “self-organiz[e], to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 

A surgeon recently brought suit against his employer, in Staveley-O’Carroll v. Penn State Milton S. Hershey Medical Center, alleging that he was fired in violation of the Family and Medical Leave Act (“FMLA”).  No. 1:13-cv-01555-YK (M.D. Pa. filed June 18, 2013). Interestingly, the surgeon is not claiming that he was entitled to, requested, or took FMLA leave.  Rather, he claims that he was retaliated against for defending his secretary’s FMLA rights.

As payroll debit cards receive increased scrutiny from state agencies, the plaintiff’s bar, and the media, employers using debit cards to pay their employees’ wages should review their practices to ensure they are compliant with existing state laws and recommended best practices.

In a landmark ruling, United States v. Windsor, the Supreme Court struck down a major provision of the Defense of Marriage Act (“DOMA”).  Since its enactment in 1996, DOMA defined “marriage” to mean “only a union between one man and one woman as a husband and wife” and “spouse” to refer “only to a person of the opposite sex who is a husband or a wife,” which, by their terms, excluded marriages of same-sex couples.  These definitions were applicable to all federal statutes, regulations, rulings and orders, including the Internal Revenue Code (the “Code”) and the Employee Retirement Income Security Act (“ERISA”).

As reported on Hunton & Williams’ Privacy and Information Security Law Blog, on June 5, 2013, the United States District Court for the Northern District of Ohio denied an employer’s motion to dismiss, holding that the Stored Communications Act (“SCA”) can apply when an employer reads a former employee’s personal emails on a company-issued mobile device that was returned when the employment relationship terminated. The defendants, Verizon Wireless (“Verizon”) and the manager who allegedly read the plaintiff’s emails, argued that the SCA applies only to ...

EMPLOYMENT DECISIONS

Vance v. Ball State University: Narrow Definition of Supervisor in Harassment Suits
In Vance, the Supreme Court announced a narrow standard for determining which employees constitute “supervisors” for purposes of establishing vicarious liability under Title VII. In a 5-4 decision, the Court decided that a supervisor is a person authorized to take “tangible employment actions,” such as hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The majority opinion rejected the EEOC’s ...

Now that summer is here and the interns have arrived, it is important to consider whether your interns should be paid.  A New York District Court has recently issued a decision highlighting this concern in its ruling against unpaid internships.  In Glatt v. Fox Searchlight Pictures Inc. interns who worked on the set of Black Swan brought suit alleging that Fox Searchlight Pictures Inc. and Fox Entertainment Group, Inc. violated the Fair Labor Standards Act (“FLSA”) and the New York Labor Laws (“NYLL”) by classifying them as unpaid interns rather than employees.  11 Civ 6784 (WHP) (S.D.N.Y. June 11, 2013).

Last week, in American Express Co. v. Italian Colors Restaurant, the United States Supreme Court, in a 5-3 ruling, reversed the Second Circuit and held that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery.  In holding that a class action waiver in an arbitration agreement is enforceable, even as to federal anti-trust claims, this decision builds upon the trend set in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010), AT & T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) – that arbitration agreements should be enforced according to their terms even for claims under federal statutes.