Hunton Employment & Labor Perspectives

On October 5, 2017, Attorney General Jeff Sessions released a formal letter on behalf of the United States Department of Justice stating the DOJ’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status,” officially retracting the DOJ’s previous position under the Obama Administration and setting up a direct conflict with the EEOC’s current position on the scope of Title VII.

Federal contractors have extra time this year to submit their annual report.   The Department of Labor has this notice on its website.

NOTICE: IMPACT FROM HURRICANES HARVEY AND IRMA

NOTICE: In order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, Federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely Report or failure to comply with Federal regulations.

In future years, the deadline will return to September 30th.

On September 15, the White House announced that President Trump will nominate Peter B. Robb, a longtime labor and employment attorney, to become the National Labor Relation Board’s next general counsel.  Assuming Robb is confirmed by the Senate, he would likely take over his position  hopefully in early November following the end of the incumbent’s General Counsel’s term and Robb’s swearing in.

On August 31, 2017, a federal district court judge in Texas struck down the Department of Labor’s Obama-era controversial 2016 rule that raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” exemption. Under the proposed regulations, the minimum salary threshold was raised to just over $47,000 per year, and increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000.

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The day employers have been waiting for, has finally arrived.  The government has indefinitely stayed the requirement that companies begin reporting “Component 2” wage data in their EEO-1 Reports.  Companies around the country are breathing a collective sigh of relief.

A New York Appellate decision issued last week—finding that firing an employee for being sexually attractive states a claim for gender discrimination—exemplifies the broad interpretation of discrimination laws in recent years.

Plaintiff Dilek Edwards worked as a yoga instructor and massage therapist for a Manhattan-based chiropractor and wellness center owned and operated by a married couple.  Edwards maintains that she was regularly praised for her performance and maintained a “purely professional” relationship with the husband-owner.

California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct.  Cal. Gov’t Code § 12940(k).  In 2016, the California Fair Employment and Housing Council promulgated regulations which set forth the required elements of a compliant prevention and correction program (2 CCR §§ 11023-11024), and in May 2017 the California Department of Fair Employment and Housing (“DFEH”) issued a Workplace Harassment Guide (the “Guide”) to clarify further employers’ obligations under these regulations.  

On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”

Numerous changes have been made to the MHRA, so the Bill is worth a read.  A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

Massachusetts’ highest court last month became the first nationally to rule that many job applicants and employees who are medically certified to use marijuana cannot be automatically denied employment if they test positive for the drug.

Massachusetts is one of many states – now more than half – with statutes permitting marijuana use for medicinal purposes.  Those state laws protect users from criminal prosecution, but the large majority of the statutes (including in Massachusetts) are silent on whether employers are free to deny employment to those who test positive for “medical marijuana.”  Until now, every court to rule on the issue had held that employers may refuse to hire those individuals based simply on a positive test.

With this ruling, employers in the Bay State must revamp their thinking and possibly even hire or retain known medical marijuana users.