Hunton Employment & Labor Perspectives

We reported last week that the NLRB's new "ambush election rule," as it is called by some critics, is facing a federal court challenge from a coalition of business groups led by the U.S. Chamber of Commerce.  The filing of that litigation has interfered with the Board's plans to implement its employer notice posting rule, issued earlier this year.  That rule -- which requires private-sector employers covered by the NLRA to post a notice that tells employees about their right to unionize, gives examples of unlawful employer and union conduct and tells employees how to contact the NLRB with questions and complaints -- has also been challenged in the Chamber's lawsuit.  The NLRB earlier had postponed implementation of the rule until January 31, 2012.  The judge, however, recently told the parties to the suit that she did not think the Board's January deadline would allow them sufficient time to argue the merits of the rule.

On December 6, 2011, just five days after it heard oral arguments in the case, the Eleventh Circuit Court of Appeals affirmed a victory for a transgender woman, Vandiver Elizabeth Glenn, who sued her former employer, the Georgia state legislature, for violating the Equal Protection Clause of the United States Constitution.  A three-judge panel unanimously affirmed a summary judgment for the plaintiff, who was fired from the General Office of Legislative Council for undergoing a gender transition.

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.

On December 8, 2011 the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice of Proposed Rulemaking in the Federal Register that would revise the regulations implementing Section 503 of the Rehabilitation Act of 1973, including setting hiring goals for individuals with disabilities.

The U.S. Department of Justice has moved to intervene to defend the constitutionality of the Fair Credit Reporting Act (“Act”) against a consumer reporting agency accused of violating § 605 of the Act.

On November 23, 2010, Shamara T. King filed suit against General Information Services, Inc. (“GIS”) in Pennsylvania federal court claiming violations of the Act.  (See, King v. General Information Services., No. 2:10-CV-06850 (E.D. Pa. Nov. 23, 2010).  Specifically, King claims that when she applied for a job with the United States Postal Service, GIS performed a background check that included details about a car theft arrest that occurred more than seven years prior to the requested background check.  According to § 605(a)(5) of the Act, consumer reporting agencies cannot provide adverse information, except for criminal convictions, “which antedates the report by more than seven years.”

Federal contractors have numerous non-discrimination and affirmative action obligations under Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA") and the Rehabilitation Act, including the preparation of annual written affirmative action plans. These obligations are enforced by the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"), which is currently headed by Patricia A. Shiu.  Since Shiu was appointed director in August of 2009, the OFCCP has been extremely active, increasing contractors' affirmative ...

The EEOC recently voted to move forward on new regulations that will likely make it easier for older workers to bring disparate impact claims, and harder for employers to defend against such claims.  The EEOC is taking the position that employers have to prove their choices are reasonable when adopting policies that might adversely affect older workers, and the rules provide several guidelines for consideration.  In light of the new regulations, employers should revisit the factors used in making hiring, promotion, and termination decisions and take steps to minimize the use of subjective criteria and procedures.  Employers should also consider the likelihood that litigation costs may increase as more cases may survive summary judgment, and consult with legal counsel to determine whether additional precautions must be put into place to proactively address potential disparate impact issues.

This afternoon, the National Labor Relations Board ("NLRB") passed a resolution to amend several of its regulations that govern pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases.  The resolution, which was proposed by Board Chairman Mark Pearce, authorizes the Board to issue a final rule that would make a number of procedural changes to its pre-election procedure, including the following:

Employers need to prepare themselves for the very real possibility of immediate and significant changes in the union election process which could result in shortening the time in which elections will be conducted.  In August, we wrote about the numerous changes to the procedures governing union elections proposed by the National Labor Relations Board (“NLRB”) as part of its rulemaking process.  These proposed changes, which most prominently include reducing the amount of pre-election litigation and shortening the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed, are significant.  If adopted, these changes would both alter the landscape of secret ballot elections and place employers at a severe disadvantage by giving them much less time to respond to organizing campaigns.

Imagine the following scenario…  Twenty years ago, your Company was the employer at issue in a key Supreme Court of Virginia non-compete agreement case.  Your Company prevailed, with the Supreme Court holding that the Company’s standard non-compete agreement is enforceable under Virginia law.  Relying on that victory, your Company continues using identical non-compete language and believes that it is on firm footing in doing so; after all, the Supreme Court of Virginia - the final arbiter of the meaning of Virginia law - has ruled that your non-compete is enforceable.

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