Hunton Employment & Labor Perspectives

Hunton Andrews Kurth LLP was recognized in Benchmark Litigation’s 2019 Labor and Employment guide, which seeks to find law firms and partners who stand out in their labor and employment practices throughout the US. The Firm’s Labor & Employment Team was recognized by Benchmark Litigation in 5 locations, and 13 partners from the practice were also recognized as “Benchmark Litigation Labor & Employment Stars.”

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Does an individual who receives a single text message, in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), have standing to sue in federal court?  The answer, for now, depends on where the lawsuit is filed.

Illinois joined a handful of other states when its prohibition on employer inquiries into applicants’ prior wage or salary information took effect this week.

Under the law, no employers in Illinois can ask about the wage or salary histories of job applicants.  If an employer receives salary history information voluntarily from the applicant, the employer still may not use that information to screen candidates.

For at least one more year, health plans, including employer-sponsored plans, will be able to exclude the value of drug manufacturer discounts from participant deductibles and out-of-pocket maximums, even where no medically appropriate generic drug is available.  The Department of Labor (DOL), Department of Health and Human Services (HHS), and the Department of Treasury (collectively, the "Departments") jointly issued a temporary non-enforcement pledge relating to these so-called "accumulator programs" as a result of an apparent catch-22 relating to high-deductible health plans (HDHPs) with health savings accounts (HSAs). 

This summer, the National Labor Relations Board (“NLRB” or “Board”) issued several pro-employer decisions.  Just last month, the NLRB issued two key decisions for employers, which are discussed below.

Worker Misclassification Not a Violation of the NLRA

 As we previously reported, the Board previously invited interested parties and amici to submit briefs in the case of Velox Express, Inc. (15-CA-184006) to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors as a violation of the National Labor Relations Act (“NLRA”).

In a decision first discussed on the Hunton Insurance Recovery Blog on September 6, 2019,  a California Appellate Court held that underwriters at Lloyd’s of London must defend the owner/operator of hundreds of Pizza Hut and Wing Street restaurants in a putative employee class action accusing the company of labor law violations, finding that an employment practices liability insurance (EPLI) policy’s “wage and hour” exclusion must be construed narrowly to bar coverage only for claims related to “laws concerning duration worked and/or remuneration received in exchange for work.” In doing so, the court made clear that “wage and hour” exclusions do not preclude coverage for claims that go beyond the employee’s actual remuneration received in exchange for work.

On September 20, 2019, the NLRB issued a notice of proposed rulemaking to exclude undergraduate and graduate students who perform paid work for private colleges and universities in connection with their studies from the definition of employee under the National Labor Relations Act.  The proposed rule would prevent undergraduate and graduate teaching assistants from unionizing or collectively organizing.

Earlier today, the United States Department of Labor announced a long-awaited final rule to take effect on January 1, 2020 updating the earnings threshold to $35,568 necessary for employees to qualify for the Fair Labor Standards Act’s (FLSA) “white collar” exemptions.   The DOL estimates that 1.2 million additional workers will be entitled to minimum wage and overtime pay as a result of this increase in the salary basis.

Yesterday, the California Supreme Court issued its highly-anticipated decision in ZB, N.A. v. Superior Court bringing some welcomed good news for California employers.   The case concerned an action brought under the Private Attorneys General Act, wherein the representative employee was seeking, among other things, lost wages under Labor Code Section 558.  The question presented was whether the employee’s claim for lost wages under Labor Code Section 558 could be broken off and sent to arbitration on an individual basis, while the remainder of the PAGA action for civil penalties proceeded in court.  As discussed in a previous post, California courts were split on this issue.

On September 3, 2019, in First Student, Inc. v. NLRB, __ F.3d __ (D.C. Cir. 2019), the court upheld the National Labor Relations Board’s application of the “perfectly clear” doctrine in First Student Inc. v. NLRB, 366 NLRB No. 13 (February 6, 2018).  The “perfectly clear” doctrine affects the right of a labor law successor, which acquires a unionized business, to set new terms and conditions of employment.  Thus, it can have an important impact on the economics of the commercial transaction.