Hunton Employment & Labor Perspectives

Pundits in the labor arena have speculated for months that the Administration’s recent appointment of union-friendly Board candidates like former SEIU Assistant General Counsel Craig Becker could have a significant impact on the state of Board precedent in future cases.  If the Board’s highly anticipated recent decision in United Brotherhood of Carpenters and Joiners of America, 355 NLRB No. 159 (“UBC”), is any indication, the pundits may be right.

In UBC, the full five-member Board -- which split along party lines -- held that a labor union’s use of stationary banners ...

Our prior posts have chronicled recent attempts by Congress and state legislatures to crack down on employers who misclassify employees as independent contractors, the most notable of which was the Employee Misclassification Prevention Act that, among other things, seeks to create a cause of action under the FLSA for misclassification and to require employers to keep records of hours worked by independent contractors.  On September 15, Congress took yet another step in the enforcement direction when Senator John Kerry (D-Mass.) and Representative Jim McDermott (D-Wash.) introduced The Fair Playing Field Act of 2010 (S. 3786, H. 6128), which seeks to close a so-called “loophole” under the current tax regime.

Employers who thought the hotly contested issue of card check recognition had been side-lined along with EFCA should take notice of a recent decision announced by the National Labor Relations Board (the “Board”).  As predicted earlier in light of its new composition, the Board has begun to lay the groundwork to overturn established precedent giving employees the right to demand a secret ballot election in the face of voluntary card-based union recognition.

The U.S. District Court for the Eastern District of Pennsylvania recently decertified a wage and hour collective action against Pennsylvania poultry processor Farmers Pride, ruling that a collective action is not an appropriate mechanism for resolving claims that the employer failed to fully compensate employees for time spent engaged in donning- and doffing-related activities.  The Court’s 47-page opinion reflects a thorough analysis that will serve as guidance to employers and courts around the country faced with similar collective action claims.

Set out below is a chart that describes the various notices that are required under government regulations for the group health plan reforms and related requirements that will be in going into effect for plan years beginning on or after September 23, 2010 (e.g., January 1, 2011 for calendar year plans) -- including the special notice requirement for those plans that intend to continue to maintain “grandfathered” status, along with a link to any model notice/language provided by the government.

Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc.  In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age.  The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.

Hunton & Williams partner Terence Connor was ranked among the 100 Most Powerful Employment Attorneys for 2010 by Human Resources Executive magazine in its June 2010 edition. The ranking was selected on the basis of submissions by firms, evaluations by clients and peers, and research by Lawdragon, a media company offering legal news, online lawyer profiles, and rankings.

Section 351 of California’s Labor Code prohibits employers from taking any gratuity patrons leave for their employees, and provides that such gratuity is “the sole property of the employee or employees to whom it was paid, given, or left for.”  A number of Courts of Appeal have consistently held that this prohibition does not extend to employer-mandated tip pooling -- where employees must pool and share their tips with other employees.  Louie Hung Kwei Lu, a former card dealer with Hawaiian Gardens Casino, Inc., decided to test these rulings.

On July 19, 2010, the United States Departments of Health and Human Services, Labor and Treasury issued interim final regulations covering the mandates under the Patient Protection and Affordable Care Act, as amended (the “Health Care Reform Act”), relating to the internal and external claims review process. These requirements, which do not apply to grandfathered group health plans, substantially expand the claims review and appeals processes that group health plans must follow in administering claims. Because the new requirements apply as of the beginning of the first ...

According to recent federal court decisions, a shareholder, director, or other individual holding a similar position in a corporation may find his or her job status disqualifies him or her from legal relief under many state and federal anti-discrimination laws should such individual believe that he or she has been the subject of unfair treatment in the workplace. In Kirleis v. Dickie, McCamey & Chilcote, P.C., No. 09-4498 (3rd Circuit July 14, 2010), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a law firm shareholder was not an “employee” of the professional corporation protected by federal and state anti-discrimination laws.