Hunton Employment & Labor Perspectives

In Corona Regional Medical Center v. Sali, No. 18-1262 (May 3, 2019), the Supreme Court recently dismissed a petition for a writ of certiorari that would have resolved a circuit split as to whether expert testimony must be admissible to be considered at the class certification stage.  As a result, the Ninth Circuit remains one of only two circuits that have ruled workers are not required to submit admissible evidence to support a motion for class certification.  In contrast, the Second, Third, Fifth, and Seventh Circuits have all held that expert testimony must be admissible to be considered at the class certification stage.

In a unanimous 9-0 decision authored by Justice Ginsburg, the U.S. Supreme Court resolved a split amongst the circuit courts of whether filing a charge of discrimination pursuant to Title VII is a jurisdictional prerequisite or a claims-processing rule. Prior to the Supreme Court’s resolution of the issue, the First, Second, Third, Fifth, Sixth, Seventh, Tenth, and D.C. Circuit Courts all held that the administrative exhaustion requirements under Title VII are not jurisdictional, but rather an affirmative defense that can be waived by an employer if not timely raised. On the other side of the circuit split, the Forth, Ninth, and Eleventh Circuit Courts held that the administrative exhaustion requirement is jurisdictional, and that a federal district court has no authority to adjudicate Title VII claims if the plaintiff has not first filed a charge with the EEOC. In its decision, Fort Bend County v. Davis, all nine justices agreed that the charge filing requirement under Title VII is not jurisdictional, and therefore can be waived by a defendant if not timely raised.

Paid Family and Medical Leave, or PFML, is fast approaching and Massachusetts employers need to begin preparing for the upcoming July 1, 2019 effective date.

Not only do employers need to understand their obligations, but there are affirmative actions they must take now – which is well in advance of the January 1, 2021 commencement of the benefits taking effect.

Originally published in The Business Journals, Jayde Brown and Alan Marcius discuss considerations when accommodating nursing mothers in the workplace.  Read more here.

Originally posted on the Hunton Retail Law Resource Blog, members of the U.S. Senate Finance Committee recently announced a bipartisan committee of senators to consider federal paid family leave policy.  Read more here.

A new Virginia law will require employers to provide current or former employees with copies of certain employment-related documents upon request.

Effective July 1, 2019, Virginia employers must provide a copy of a limited set of employment documents to employees upon receipt of a written request for such information from the employee, her attorney or an authorized insurer.  The law applies to current and former employees, and allows an employer 30 days to produce the documents after receipt of the request.

The House of Representatives passed the Equality Act (H.R. 5 – 116th Congress) this past Friday, May 17, mostly along party lines – the resolution passed with a 236 to 173 vote, with only 8 of the “aye” votes cast by Republicans.  The Equality Act would amend various civil rights laws, including the Civil Rights Act of 1964 (“Civil Rights Act”), the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other laws regarding employment with the federal government, to explicitly include sexual orientation and gender identity as protected characteristics.

In a recent advice memorandum, the National Labor Relations Board (the “Board”) set forth its position that drivers for the rideshare company Uber are independent contractors, not employees, for purposes of the National Labor Relations Act (“NLRA”).  This means that the Board, as it is currently comprised, will not entertain efforts of drivers to unionize or seek other protections under the NLRA.  Because it is only a directive from the Board’s General Counsel, as opposed to a decision by the five-member Board, the advice memorandum is not appealable to a federal appellate court, and those who oppose the Board’s position will not have judicial recourse.  The Board’s advice memorandum comes on the heels of the Department of Labor’s recent opinion letter stating that workers for a “virtual marketplace company that operates in the so-called ‘on-demand’ or ‘sharing’ economy” are not employees under the Fair Labor Standards Act, and thus not covered by the law’s minimum wage and overtime requirements.

Originally published in The Business Journals, Jayde Brown and Alan Marcius discuss considerations when creating an electronic communications policy.  Read more here. 

California First Appellate District’s recent decision in Subcontracting Concepts, LLC v. DeMelo, A152205 (April 10, 2019) applies well-established unconscionability principles to an arbitration agreement signed by an employee of an independent contractor.

The employee, DeMelo, was hired directly by Express Messenger Systems, Inc. (d/b/a OnTrac), which contracted with Subcontracting Concepts, LLC (SC).  At the start of his eCamployment, DeMelo was required to sign SC’s “Owner/Operator Agreement,” a five-page, 27-paragraph agreement with an arbitration clause in paragraph 26.  Two and one-half years later, DeMelo filed a wage claim with the California Labor Commissioner. The two corporate entities and several individually-named supervisors petitioned to compel arbitration and stay the Labor Commissioner proceeding.  The San Francisco Superior Court denied the petition, finding the arbitration agreement to be unconscionable. The First Appellate District agreed, and certified this case for publication.