Hunton Employment & Labor Perspectives

The U.S. Supreme Court yesterday granted certiorari in two high profile labor cases, setting up what promises to be a compelling October 2013 term for labor practitioners.

A new case under the amended American with Disabilities Act (“ADA”) may add to employers’ confusion over how to handle medical and disability issues.   Butler v. Louisiana Dep’t of Pub. Safety & Corr., No. 3:12-cv-000420 (M.D. La. 2013).  In Butler, a state trooper alleged he was “regarded as” disabled by his employer, who allegedly thought he had obsessive compulsive disorder and germaphobia.  He claimed he was placed on involuntary leave, subjected to an excessive fitness-for-duty exam, and denied overtime opportunities.  The defendant employer denied the allegations and asserted the “direct threat” defense.  It sought discovery of the plaintiff’s psychiatric records and moved to compel production when the employee objected to the requests.  The court denied the motion to compel and made several interesting pronouncements.

In Weiss v. DHL Express, Inc., the First Circuit held that the employee was not entitled to a bonus based on the language of the company’s bonus plan and the bonus plan committee’s determination that the employee had been terminated for good cause.  The Court also held that the employee had no recourse under the Massachusetts Wage Act because his bonus did not qualify as wages under the Act.  Nos. 12-1853 and 12-1864 (1st Cir. June 3, 2013).

The Supreme Court has unanimously upheld an arbitrator’s ruling that a contract that required arbitration of “any dispute” constituted an agreement to class-wide arbitration. The Court’s narrow ruling turns on the parties’ express agreement to allow the arbitrator to decide whether their contract, which contained an arbitration provision but did not mention class proceedings, authorized class arbitration. However, the opinion has significant implications for companies desiring to avoid class arbitration—and class actions generally—through provisions ...

In an article to be published this month in the Seton Hall University Law Review, Hunton & Williams partners, Terry Connor and Kevin White have challenged the authority of the EEOC to publish its April 2012 Guidance.  That Guidance interprets Title VII to impose disparate impact liability on employers who consider the criminal background of applicants for employment as a criterion for selection.

On Friday, May 31, 2013, Hunton & Williams partner Michael Shebelskie argued on behalf of Big Ridge Inc. in Big Ridge Inc. v. NLRB, the lead case pending in the U.S. Court of Appeals for the Seventh Circuit in which an employer has challenged the constitutionality of President Obama’s January 4, 2012 recess appointments to the NLRB.  Mr. Shebelskie and Hunton & Williams also argued against the validity of the President’s recess appointments before the Fourth Circuit earlier this year in Huntington Ingalls Incorporated v. NLRB.  Argument in the Big Ridge case comes hot on the heels of ...

In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool. 

Pundits have written much about the Affordable Care Act’s forthcoming Health Insurance Exchanges, but they have paid little attention to employers’ obligations to notify employees of those Exchanges.  The state-based Exchanges, also known as the Health Insurance Marketplace, are expected to go into effect on January 1, 2014, with open enrollment beginning on October 1, 2013.  Employees may purchase health insurance through these Exchanges.

NLRB Asks Supreme Court To Review Decision That Struck President Obama’s Recess Appointments

On April 25, 2013, the National Labor Relations Board (“NLRB” or “Board”) filed a petition for a writ of certiorari asking the United States Supreme Court to review the decision in NLRB v. Noel Canning in which the D.C. Circuit Court of Appeals held that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional.  The Court ruled President Obama’s appointments were not valid because the Senate was not in “the Recess” at the time he made them and thus, the Board lacked the required quorum needed to conduct business.  Under the Recess Appointments Clause of the Constitution, the President is able to bypass Senate approval and fill executive vacancies “that may happen during the Recess of the Senate.”  The Court held “the Recess” means the intersession break between annual Senate sessions, not any intrasession break during an ongoing session.  It also held an executive vacancy does not “happen” during the Recess unless the office actually becomes vacant during such a recess.

For 60 years psychiatrists and other mental health professionals have been using the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” (DSM) as the “bible” for diagnosing mental diseases and disorders.  Health and disability insurance providers  use the DSM in deciding what conditions and treatments to cover, as do government agencies in determining eligibility for benefits and services.  These and other factors make the DSM an unusually powerful document.

The latest DSM revision (the DSM-5) is set for release later this month.   It creates several new mental disorders and broadens the definition of a number of existing ones.  These changes will affect employers in a variety of ways, from expanded protection under the ADA and FMLA to increased benefit costs.