Hunton Employment & Labor Perspectives

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

The NLRB's "quickie election" rules will go into effect today, April 30, in light of a federal district court decision denying a Motion seeking an injunction against the rule becoming effective. The Court indicated that it would issue a written opinion before the date on which any election could be held under the new rules. Our calculation is that, at least for now, the minimum time necessary for an election to be held after the filing of a petition is 17 days.

The  Court's Order reads:  “As the parties discussed in a conference call with the Court at 5:00 p.m. on April 27, the Court ORDERS that ...

In Victoria, Texas, the Citizens Medical Center prohibits hiring obese employees.  The hospital promulgated a policy that requires all potential employees to have a body mass index (BMI) of less than 35.  For example, an applicant who is 5-foot-5 could not weigh more than 210 pounds, and an applicant who is 5-foot-10 could not weigh more than 245 pounds.  All potential employees are screened by a physician to assess their fitness for duty.  According to the hospital’s policy, an employee’s physical appearance “should fit with a representational image or specific mental projection of the job of a health care professional.”

A federal court jury returned a unanimous verdict in favor of Tyson Foods today in a Rule 23 class and FLSA collective action, alleging failure to pay overtime under state and federal law.  Tyson was represented at trial by Hunton & Williams' lawyers Michael J. Mueller, Emily Burkhardt Vicente and Evangeline Paschal and local Baird Holm lawyer, Thomas E. Johnson.

Last week, the U.S. Court of Appeals for the D.C. Circuit significantly limited the time period in which employers may be cited for recordkeeping violations under the Occupational Safety and Health Act (“the Act”) in AKM LLC dba Volks Constructors v. Secretary of Labor, Civ. No. 11-1106.  The Court ruled that such violations must be cited within six months of their occurrence, marking a considerable decrease from the previous practice of citing violations from up to five years prior--the period of time during which injury and illness logs must be retained under the Act.  In doing so, the federal appeals court rejected the independent Occupational Safety and Health Review Commission’s decision upholding an enforcement action against Volks Constructors and the Occupational Safety and Health Agency’s (“OSHA”) argument that Volks’s failure to keep injury and illness logs constituted continuing violations.

Brinker International, one of the world's leading casual dining restaurant companies, announced yesterday that the California Supreme Court has issued an opinion in Brinker Restaurant Corp. et al. v. The Superior Court for the State of California for the County of San Diego (Hohnbaum). This long-awaited decision, on which Hunton & Williams attorneys M. Brett Burns, Laura M. Franze, and Susan J. Sandidge served as counsel of record for Brinker, resolves multiple first-impression issues regarding California meal period and rest break class actions. Among other things, the Court ...

On March 12, 2012, OSHA issued a memorandum expanding on specific policies and practices that OSHA asserts can discourage employees from reporting workplace injuries or illnesses, and thus, violate the Occupational Safety and Health Act (“OSH Act” or “Act”) and/or the Federal Railroad Safety Act (“FRSA”).  Intended as guidance to both field compliance officers and whistleblower investigative staff, the memorandum notes four programs or practices that, while potentially useful to management as a metric for safety performance, cannot be condoned without careful scrutiny because of the risk they could chill employee reporting of workplace injuries or illnesses.

In what was a welcome decision for employers recently targeted by EEOC administrative subpoenas, on February 27, 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a district court’s refusal to enforce what it deemed to be an “incredibly broad” administrative subpoena from the Equal Employment Opportunity Commission.  The decision — EEOC v. Burlington N. Santa Fe Ry. Co., No. 11-1121 — resolved Burlington Northern Santa Fe Railway Co.’s two-year battle with the agency over an administrative subpoena seeking nationwide recordkeeping data.  The EEOC’s administrative enforcement powers stem directly from the agency’s broad legislative mandate to investigate systemic discrimination, the frequency of which has increased in recent years.  But, the Tenth Circuit’s decision is good news for many employers.  Not only does its decision confirm that the EEOC’s subpoena and discovery authority is, in fact, limited, but it also prohibits the agency from initiating “pattern or practice” discovery that is irrelevant to its current charges.

Since the U.S. Supreme Court’s decision in Wal-Mart v. Dukes, there has been a significant amount of educated speculation about the effect of that decision on class action litigation in general and more particularly on class actions involving claims of employment discrimination.  Dukes is seen as creating an impassable barrier for class actions claiming discrimination in multiple locations based on excess subjectivity arising from decentralized decision-making.  Dukes instead focuses the inquiry on the existence and discriminatory effect of enterprise-wide policies such as an employment test or standardized performance criterion.  The question remains: what constitutes an enterprise-wide policy or practice?  This is a question that has challenged practitioners since General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15 (1982), and before.