Hunton Employment & Labor Perspectives

The Consumer Financial Protection Bureau (“CFPB”) issued a new “A Summary of Your Rights Under the Fair Credit Reporting Act” (“FCRA”)  (“Summary of Rights”) form on September 12, 2018.  This form replaces the previous version issued on November 12, 2012, and is expected to be implemented by employers on September 21, 2018.

Hunton Andrews Kurth special counsel and former NLRB general counsel Ronald Meisburg recently wrote an article, “Navigating NLRB: Attacking Instability With APA Rulemaking”, as part of Law360’s Expert Analysis series.  

The OFCCP vowed things would change after President Trump’s election.  It is making good on that promise.  The Agency issued three new Directives in the last two weeks, following four others earlier this year.  One of these Directives was long-awaited new guidance on pay analyses, replacing Directive 307.  And, the OFCCP has a new Acting Director, Craig Leen (see our earlier post for the exciting news about the immediate-past Director, Ondray Harris, joining our firm).

The good news for contractors is that the OFCCP’s actions are almost all pro-business, aimed at making the Agency more transparent, objective, and efficient.

Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.

While there is overlap between the State and City requirements, there are differences that employers should note.

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act (“NLRA”).  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act (“FLSA”), at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that the National Labor Relations Act (“NLRA”) does not prohibit the use of arbitration agreements with class/collective action waivers covered by the Federal Arbitration Act (“FAA”).   The Sixth Circuit has now concluded in Gaffers v. Kelly Services, Inc.  that the Fair Labor Standards Act (“FLSA”), like the NLRA, does not bar the use of arbitration agreements with class/collective action waivers.

When negotiating a settlement agreement in an employment dispute, “no rehire” language is often a standard term.  This language typically bars the litigating employee from seeking re-employment with the former employer.  However, in California, at least one “no rehire” provision was invalidated because it was not narrowly tailored to the employer at issue.

In Golden v. California Emergency Physicians Medical Group (“CEP”), CEP terminated Dr. Golden’s employment, and he subsequently filed a lawsuit alleging racial discrimination.  The parties settled Dr. Golden’s claims, and CEP included a “no rehire” provision in the settlement agreement.  The provision states:

Hunton Andrews Kurth LLP is pleased to announce Ondray T. Harris, former director of the US Department of Labor’s Office of Federal Contract Compliance Programs, has joined the firm’s national labor and employment practice as special counsel in Washington.

At the OFCCP, Harris led the agency responsible for ensuring that federal government contractors and subcontractors achieve and maintain compliance with non-discrimination requirements. Previously, he led the Department of Labor’s initiative to assist private industries and states with creating apprenticeship programs and directed the operations of its Employment and Training Administration.

The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).

On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.

The Board’s recent vacating of this order is noteworthy for two reasons.