Hunton Employment & Labor Perspectives

Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

With a dearth of job openings for recent college graduates, many have pursued unpaid internships while continuing to search for fulltime employment.  A 2008 survey found that half of all college students hold at least one internship before graduating.  In light of the 18.8% March unemployment rate for American workers aged 16-24—nearly double the 9.7% unemployment rate for the workforce at large—this practice can be beneficial for interns, who gain experience and contacts, as well as for employers, who can benefit from having eager interns ready to learn and contribute.

The Wall Street Journal calls him “labor’s biggest weapon.”  His nomination to the National Labor Relations Board prompted Senator John McCain to refer to him as “probably the most controversial nominee that I have seen in a long time.”  When his nomination stalled in the Senate after a heated partisan debate, President Obama was forced to make a rare recess appointment to reserve his position on the Board.

For an employer preparing to defend against a legal action by a disgruntled employee, few moments are as intoxicating as digging into the employee's electronic files on the company-owned computer.  The golden dirt often emerges in the form of a gossipy e-mail or an internet search for something racier than the sports scores.

Think you are doing your pregnant employee a favor by taking her off a big account to give her some time “for herself”?  Think again!  You may just be opening yourself up for a lawsuit.

Most employers have never heard of Family Responsibilities Discrimination (“FRD”).  FRD is an umbrella term for workplace discrimination based on stereotypes about how employees with family caregiving responsibilities will or should act.  For example, an employer may assume that a new mother will not be as committed to her career or as reliable as she was before she had a baby.  Or an employer might believe that a mother “should” be home with her children and may refuse to give her assignments that require travel or late hours. The discrimination arises because the employer’s actions are based on stereotypical beliefs, rather than on the individual employee’s performance or own desires.  And family caregiving is not just limited to childcare.  In fact, an increasing proportion of caregiving is devoted to the elderly and disabled. As with childcare, women are disproportionately responsible for caring for their relatives, including parents, spouses, and other relatives.

The much-publicized health care reform act contains a particular provision that has not received much media exposure, but which may require employers to take immediate action.  The 2010 Patient Protection and Affordable Care Act (“PPACA”), signed into law by President Obama on March 23, amends the Fair Labor Standards Act (“FLSA”) to require employers to provide “reasonable break time” for nursing mothers to express breast milk.

President Obama recently signed into law both the Patient Protection and Affordable Care Act (the “PPACA”) and the Health Care and Education Reconciliation Act of 2010, which amends the PPACA. These  two Acts will significantly change the health care landscape in the United States.

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Establishing work rules and job descriptions for employees not only provides employees with a better understanding of job expectations, but also helps protect employers from liability for discrimination and other employment-related claims.  In Budde v. Kane County Preserve, No. 09-2040 (7th Cir. March 4, 2010), the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s ruling that the ADA does not protect an employee who violates workplace rules from discipline up to and including termination, even if the violation is caused by a disability.

President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.

On April 1, Secretary of Labor Hilda Solis announced a new campaign aimed at enforcing federal wage and hour laws on behalf of low-wage and immigrant workers and warned employers, “A new sheriff is in town.”