Hunton Employment & Labor Perspectives

On November 14, 2016, a federal judge in California denied summary judgment to Hanover Insurance Co. (Hanover), finding that class claims alleging a failure to reimburse reasonable business expenses were not excluded by a “wage-and-hour” exclusion contained in EPLI policies issued by Hanover.  The lawsuit, brought by a former student of the Bellus Academy beauty school, alleged that Poway Academy (the owner of Bellus) and Beauty Boutique, Inc. (BBI) (operator of two other schools under the “Bellus” name), failed to compensate students for working on paying clients at an onsite salon and also failed to reimburse them for out-of-pocket costs to purchase necessary supplies.  The lawsuit alleged a variety of wage-related claims.  The lawsuit also alleged that the schools failed to reimburse necessary business expenses in violation of Section 2802 of the California Labor Code.

Donald Trump's election took many by surprise. Companies must now quickly determine his likely impact on their operations and workforces.

Trump will be the first US president with no government or military experience. He voiced extreme views during his campaign on immigration and discrimination, but he has played it close to the vest when it comes to other labor and employment law issues. What is clear is that Trump will have the backing of a GOP-controlled House and Senate. Does this mean employers will see radical changes in policy? Will the change to a Republican administration ...

The IRS has issued final versions of Forms 1095-C and 1094-C as well as updated final instructions on completing these forms. While the instructions and forms remain similar to those used last year, there are a few key changes worth noting.

In general, the Forms 1094-C and 1095-C are used by “applicable large employers,” or “ALEs,” to report offers of coverage to their full-time employees (those working 30 or more hours per week) as required under the Affordable Care Act, as well as by self-insured plan sponsors to report individuals covered under their plans.

Originally Published in Commercial Observer

It’s been a little over a year since the Real Estate Board of New York filed its opposition in New York’s Supreme Court to the City of New York’s Local Law 50, which prohibits owners of large Manhattan hotels from converting rooms to residential condominium units. Despite REBNY’s complaint being dismissed due to lack of standing to sue, the industry group isn’t backing down and filed a notice of appeal on Sept. 26.   The moratorium is set to expire in eight months, but there is a strong suspicion that it will be extended.

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The Ninth Circuit has joined both the Sixth and Fifth circuits in holding that USERRA claims are subject to arbitration pursuant to an employee’s agreement to arbitrate employment related claims.  See Ziober v. BLB Resources, Inc., 2016 WL 5956733 (9^th Cir. Oct. 14, 2016).  In doing so, the Ninth Circuit, a traditionally pro-employee circuit, has assuaged any fear of uncertainty that employers may have had with respect to their rights to compel arbitration of USERRA claims.

It is very common for employers to pay employees by direct deposit, and an increasing number pay employees with payroll debit cards.  Beginning March 7, 2017, employers in New York will have to deal with a new regulation regarding the use of direct deposit and payroll debit cards for payment of wages.  The new regulation, issued by the New York Department of Labor and titled “Methods of Payment of Wages,” imposes heightened notice and consent requirements on employers offering either service.

This past week the FTC and DOJ issued an 11-page guidance document aimed at protecting employees against anticompetitive conduct with respect to naked wage-fixing and agreements, in which companies agree on salary or other terms of compensation, and anti-poaching agreements. The guidance to human resource (“HR”) professionals and hiring managers relates to both hiring and compensation decisions.

The government’s guidance makes clear that naked wage-fixing agreements and anti-poaching agreements, in which companies agree not to recruit each other’s employees, are illegal under U.S. antitrust laws and, moving forward, DOJ will criminally investigate both individuals and companies suspected of their violation.  There is a carve-out for legitimate collaboration between employers.  The most common form of relevant, legitimate collaboration would be a joint venture between two companies, as these are not considered per se illegal under the antitrust laws.

Yesterday a federal court in Texas partially enjoined enforcement of what is known as the “blacklisting” rule.  The injunction comes one day before reporting was to begin under the Fair Pay and Safe Workplaces Executive Order, 13673.

On October 5, 2016, the Eleventh Circuit, sitting en banc, held that an unsuccessful job applicant “cannot sue an employer for disparate impact [under § 4(a)(2) of the ADEA] because [an] applicant has no ‘status as an employee.’”  Villarreal v. R.J. Reynolds Tobacco Co., --- F.3d ---, No. 15-10602, 2016 WL 5800001, at *1 (11th Cir. Oct. 5, 2016).

Earlier this year, the Department of Health and Human Services Office of Civil Rights published final rules implementing Section 1557 of the Affordable Care Act (ACA).  Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability by healthcare providers and group health plans that receive federal financial assistance. The rules include restrictions on discrimination relating to gender identity, as well as requirements regarding accessibility for individuals with limited English and with disabilities.