Hunton Employment & Labor Perspectives

Expanding on our December 21 post, the U.S. Equal Employment Opportunity Commission on January 11, 2011, announced that private sector workplace discrimination charge filings reached the “unprecedented level” of 99,922 during fiscal year 2010, which ended on September 30, 2010.  According to the data, all major categories of charge filings in the private sector, including charges against state and local governments, increased significantly.

Federal law requires employers to only employ individuals who are eligible to work in the United States. The U.S. Department of Homeland Security, in partnership with the U.S. Social Security Administration, has implemented an “E-Verify” system that allows participating employers to verify eligibility in a quick and cost-efficient manner. E-Verify is a free, federal database that compares information submitted by employees to Social Security and Homeland Security records. Employers who use E-Verify can quickly identify and reject persons who are ineligible to work in the United States.  Once employers hire workers, they process their information through the E-Verify database. If the submitted records match, the new employees are eligible to work. If the records do not match, the database notifies the employers, who must then give the worker eight days to provide sufficient proof of eligibility.

On December 21, 2010, the NLRB issued a press release and fact sheet announcing its intention to publish in the Federal Register a proposed “rule” requiring virtually all private sector employers to post in the workplace a Notice to employees outlining their rights under the National Labor Relations Act. The proposed poster was published in the Federal Register on December 22, 2010.   Interested parties will have sixty (60) days from December 22nd to respond with comments regarding the proposed rule.

The poster entitled, “EMPLOYEE RIGHTS”, lists seven bullet points ...

The fiscal year 2010 was a record-setting year for the number of private-sector discrimination charges filed with the United States Equal Employment Opportunity Commission.  Nearly 100,000 charges were filed -- the most charges in the commission’s  45-year history.  This number represents an increase of just over seven percent from 2009, becoming the third consecutive year in which over 90,000 charges were filed.

Recently, there has been a large amount of public commentary regarding the dangers of distracted driving, including texting while driving.  The Occupational Safety and Health Administration (OSHA), which regulates workplace safety, has now officially declared texting while driving to be a workplace hazard and an OSHA violation.  In its recent open letter to employers, OSHA explained that:

It is [the employer’s] responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.  Companies are in violation of [OSHA] if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.

Yesterday, United States District Judge Henry E. Hudson (Eastern District of Virginia) found unconstitutional the Patient Protection and Affordable Care Act (PPACA) provision which requires most uninsured Americans to obtain coverage or pay a penalty.  

It is not uncommon in discrimination and harassment suits for employers to battle against the admission of so called “me too” evidence.  Plaintiffs often employ the tactic of parading up other employees who claim they were discriminated against and/or harassed in the same manner as the plaintiff.  The results vary based on jurisdiction and fact pattern, and the standards can differ by jurisdiction and court.  The United States Supreme Court may soon add some clarity to this area.  The Court is considering whether to review a case involving the appeal of Billy Ray Tratree, an African-American employee who was discharged three months before he turned age 50 and was to become eligible for retirement benefits.  Tratree alleges that his employer discharged him on the basis of his race and age.  The Supreme Court soon will decide whether to review the Fifth Circuit’s opinion upholding the district court’s decision to exclude some of Tratree’s “me too” evidence.

When settling class actions, there is always a question regarding how broad the release can be, and whether an employee can stay silent through the settlement process, only to later sue for claims that arguably were not released.  A California Court of Appeal recently held in Villacres v. ABM Industries that a court-approved class action settlement can prevent a class member from filing a new lawsuit asserting claims that were brought in the previously settled class action and also claims that could have been brought in the prior action − as long as the terms of the settlement’s general release are broad enough to cover those types of claims.

Employees are increasingly talking about supervisors and other employees on social networking sites, and sometimes the talk can get nasty.  Complaining about co-workers and supervisors is not new.  However, distributing those complaints via the internet is.  Employers often seek to crack down on such negative talk via policies and disciplinary action.  However, Lafe Solomon, the NLRB’s acting general counsel, has publicly stated that employees have the right to communicate jointly about working conditions, regardless of whether those communications are made on social networking sites or at the company water cooler.  The NLRB will decide the validity of Mr. Solomon’s statement in connection with a recently-issued complaint.

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in hiring and employment decisions based on an individual’s genetic information.  So, for example, a company cannot refuse to hire a woman because her mother had breast cancer.  The law also prohibits requesting, requiring and/or purchasing genetic information, with limited exceptions, and prohibits disclosure of genetic information.  There are many open questions about the law, such as whether companies can have wellness programs anymore (restricted genetic information is routinely gathered as part of such programs) or whether it is a violation of the law for a supervisor to learn about genetic information by accessing an employee’s page on a social networking site, or by asking innocent questions about the employee’s health, such as “How are you?.”  The EEOC issued final regulations last week in an attempt to answer these and other questions under the law.  A short discussion follows.