Hunton Employment & Labor Perspectives

The Trump Administration will leave in place an executive order signed by President Barack Obama, which bans sexual orientation and gender identity discrimination by federal contractors.  President Obama signed the order in 2014.  By doing so, he amended and expanded previous executive orders signed by Presidents Nixon and Clinton, which ban discrimination by federal contractors on the basis race, color, religion, sex, national origin, handicap, status as a parent, and age.

One month into 2017 and new pay equity laws already are springing up.  Philadelphia is now the first city to prohibit employers from using pay history information in making employment decisions.  New York Governor Andrew Cuomo has issued executive orders mandating that: (1) agreements entered into by the state require contractors to report their employees’ pay information; and (2) state agencies can no longer use candidates’ current or prior pay in making employment decisions.  Likewise, the Mayor of New Orleans has now issued an executive order prohibiting city departments from asking job applicants about salary history and requesting a study of pay disparity among city employees.

On January 31, 2017, President Trump nominated Neil Gorsuch to fill the nearly year-long vacancy on the Supreme Court left by Justice Scalia.  Judge Gorsuch, currently on the Tenth Circuit Court of Appeal, is likely a welcome choice for employers.  His employment decisions generally—though not always—have favorable outcomes for employers.  However, he does not appear to be a trailblazer on employment issues, but rather applies established precedent that generally favors employers.  His employment decisions do not tend to draw dissent, bolstering the view that his opinions are not significant departures from Tenth Circuit and Supreme Court precedent.  (Of course, not all agree.  Senator Elizabeth Warren describes him as having “twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans.  He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct.  He has ruled against workers in all manner of discrimination cases.”)

President Trump has signed an Executive Order to temporarily restrict the admission of all refugees and persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  The administration’s failure to provide clear guidance to its own agencies on how to implement the order is resulting in inconsistent applications, which are unacceptable to the hundreds of thousands of individuals and U.S. businesses potentially affected by this travel ban.

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By now, most in the employer community are all too familiar with the NLRB’s controversial “micro-bargaining unit” standard announced in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011).  In that case, the Board announced a standard that in almost all instances results in approval of a union-requested bargaining unit, unless the employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other part of its workforce.  This standard has proven difficult, if not impossible, for employers to meet, and the Board has pushed the standard into retail, manufacturing, and even wineries.  Now, the Board has introduced its micro-unit rule in higher education, and the results could be disastrous for universities across the nation.

On January 22, 2017, the City of Los Angeles ‘banned the box’ when the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) (the “Initiative”) went into effect, prohibiting private employers in Los Angeles “from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment” is made to the individual. In doing so, Los Angeles becomes the fourth California city to ‘ban the box’ with greater protections than the state statute, and the second to do so with respect to private employers. If an employer makes a ...

With Christmas falling on a Sunday this year, employers should be mindful of state blue laws, which sometimes require premium pay to hourly employees working on Sundays or holidays. Although most state laws, as well as federal law, do not require premium pay for work performed on holidays (unless, of course, the employee has worked more than 40 hours that week), there are a few exceptions, such as Massachusetts and Rhode Island.

On November 22, a federal judge in the Eastern District of Texas preliminarily enjoined the Department of Labor’s final overtime rule, which would have expanded overtime eligibility to executive, administrative, and professional employees making less than  $47,476 per year, who were previously exempt from the Fair Labor Standards Act’s requirements under its white collar exemption.  The final rule was scheduled to go into effect on December 1, 2016.

On November 21, 2016, the EEOC announced the release of new enforcement guidance addressing national origin discrimination.   Like many enforcement initiatives of late, the update is intended to address current cultural issues and legal developments.  It updates an EEOC compliance manual section from 2002 (Volume II, Section 13: National Origin Discrimination).  The EEOC also issued a small business fact sheet and a Q-and-A document.

On November 16, 2016, Judge Amos L. Mazzant, heard more than three hours of oral argument from a group of 21 States (“State Plaintiffs”) challenging the Department of Labor’s new overtime rule. Following the hearing, the motion for a preliminary injunction of the rule was taken under advisement and a ruling is forthcoming on Tuesday, November 22,2016. Judge Mazzant’s pointed criticism of the rule during argument suggests employers may have reason to be optimistic.