Hunton Employment & Labor Perspectives

H1N1 flu has become as widespread as feared.  For the period of August 30 to October 24, 2009, the Centers for Disease Control (CDC) reports 12,466 confirmed U.S. H1N1 hospitalizations and 530 confirmed deaths.  The CDC attributes 1339 deaths to H1N1 since the outbreak began in the Spring.  The Countries that are experiencing the worst outbreaks are the US, Mexico, and China.

This public health crisis is expected to get worse.  Any employer who has not yet put together a pandemic flu plan should do so immediately.  The details regarding such a plan are contained in the April 2009 "Swine Flu Pandemic Preparedness" and the May 2009 "H1N1 Update" Client Alerts.

These days, massive and often confusing legislative proposals seem to be the norm on Capitol Hill.  One bill that has generated significant debate -- and controversy -- is the House's current version of the health care bill, H.R. 3200.  Although it is vague in many respects, employers trying to predict the future can draw some conclusions now about what life under a government-run healthcare system might be like.

Employees who have family members serving in the armed forces will have new expanded rights under Section 565 of the recently-enacted National Defense Authorization Act for Fiscal Year 2010.  This provision further amends the Family and Medical Leave Act (FMLA), which was amended only a year ago to allow leave to care for family members with needs relating to military service.

In August 2009, the Obama administration named Patricia A. Shiu the new Director of the Office of Federal Contract Compliance Programs (OFCCP).  The OFCCP, part of the Department of Labor (DOL), enforces the non-discrimination and affirmative action obligations of federal contractors under Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act, and the Rehabilitation Act.

At the recent AFL-CIO Constitutional Convention, Secretary of Labor Hilda L. Solis declared that the Department of Labor (DOL) is “back in the enforcement business.”  The DOL chief vowed to increase the DOL’s workplace enforcement of the nation’s labor laws because vigorous enforcement “is not only our responsibility, it’s our moral obligation.”

In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 2009 WL 1028051 (Tex. April 17, 2009), the Texas Supreme Court held that the covenant not to compete at issue was enforceable because the agreement to furnish consideration (confidential information) for the covenant could be inferred due to the nature of the contract.  The Mann Frankfort Court held that a promise can be inferred when the employee was hired to perform work that necessarily required the receipt of confidential information.  Specifically, the Court stated:

We hold that if the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties, then the employer impliedly promises to provide confidential information and the covenant is enforceable so long as the other requirements of the Covenant Not to Compete Act are satisfied.

Many employers recognize the advantages of “alternative” work arrangements with independent contractors, consultants, freelancers, temporary staffers, and “as needed” workers.  Generally, employers utilize these arrangements because they hope to obtain cost savings and increased flexibility, particularly in an uncertain business climate.  In some companies, use of a contingent worker expands working capacity without increasing employee headcount, which can be particularly attractive during a hiring freeze.

Companies doing business in California, particularly retailers, should be aware of a recent revision to the California Financial Code that sets out new accessibility requirements for point-of-sale devices.  A point-of-sale device includes any device used by a customer for the purchase of a good or service with a debit, credit or cash card where a personal identification number (PIN) is required. 

On July 15, 2009, the EEOC issued guidance entitled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." In this guidance, the EEOC generally explains the waiver of discrimination claims through release agreements and answers questions employees may have about the effect of those agreements on the filing of charges of discrimination and on severance pay. These questions include the following: "May I still file a charge with the EEOC if I believe I have been discriminated against based on my age, race, sex or disability, even if I signed a waiver ...

Franchisors with operations in the State of Georgia are confronting a new challenge in their effort to enforce non-competition rights against franchisees.  In Atlanta Bread Co. v. Lupton-Smith (6/29/09), the Supreme Court of Georgia held that an “in-term” non-competition clause within a franchise agreement is held to the same strict scrutiny standard applicable to post-term and employment contract non-competition clauses.