Hunton Employment & Labor Perspectives

In response to a presidential memorandum directing the Department of Labor (“DOL”) to collect summary compensation data from federal contractors and subcontractors to combat pay discrimination, the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed a rule calling on certain federal contractors to submit reports on employee compensation.  The rule, published in the Federal Register on August 8, requires covered contractors to annually submit an “Equal Pay Report.” Covered federal contractors and subcontractors are those who:

• File EEO-1 reports;
• Have more than 100 employees; and
• Hold federal contracts or subcontracts worth $50,000 or more for at least 30 days.

Starting September 30, 2014, many employers in the greater San Francisco Bay Area will be required to provide commuter benefits to their employees as part of the “Bay Area Commuter Benefits Program.” 

Unpaid interns have increasingly become a hot topic among lawmakers and courts.  Last week, New York Governor Andrew Cuomo signed into law legislation which prohibits New York State employers from discriminating against, or sexually harassing, unpaid interns.  New York State enacted this legislation only a few months after New York City passed a law which prohibits discrimination against unpaid interns.  New York City unanimously enacted its legislation in response to a district court ruling in October 2013, which found that an intern could not proceed with a sexual harassment claim because she was unpaid, and therefore, she was not entitled to protections under Title VII or the New York City Human Rights Law.  (Wang v. Phoenix Satellite Television US, Inc., 976 F. Supp. 2d 527 (S.D.N.Y. 2013)).  Although few jurisdictions currently offer unpaid interns protection from discrimination or sexual harassment (only New York, Oregon and Washington, D.C.), legislators in New Jersey and California have introduced bills which would grant unpaid interns these same protections.  The California bill has already passed the State Assembly and is being reviewed by the State Senate.

Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history. 

On July 21, President Obama signed an Executive Order adding sexual orientation and gender identity to the list of protected categories included in Executive Order 11246, originally issued by President Johnson in 1965.  E.O. 11246 now prohibits federal contractors from discriminating against employees or applicants for employment on the basis of race, color, religion, sex, national origin, sexual orientation or gender identity.

In Enforcement Guidance issued last week, the Equal Employment Opportunity Commission took the position that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities.

On July 14, 2014, the Council of the District of Columbia (“D.C. Council”) unanimously voted to “ban the box,” approving a bill that will restrict when an employer may ask a job applicant about his criminal background.  The bill will now go to Mayor Vincent Gray for his signature, and then to Congress for approval.

On June 30, 2014, the United States Supreme Court granted Mach Mining LLC’s petition for writ of certiorari, agreeing to take up the question of whether and to what extent courts may enforce the Equal Employment Opportunity Commission’s (“EEOC”) duty to conciliate a case prior to bringing a lawsuit.

On June 25, the government issued final rules regarding the use of “bona fide employment-based orientation periods” in connection with the Affordable Care Act’s 90 day waiting period limits. These final rules largely track the proposed rules issued in February.

On June 23, 2014, the California Supreme Court announced a landmark ruling that arbitration agreements with mandatory class waivers are generally enforceable while carving out one notable exception.  That exception consists of representative claims brought under the Private Attorneys General Act (PAGA) which is unique to California.