Hunton Employment & Labor Perspectives

Sitting as the lone dissenter on the National Labor Relations Board (NLRB) might seem like a futile exercise. Grinding away on opinions that are critiques of the law as stated by your colleagues can be disenchanting work. But as a former NLRB member, I can attest that dissents are also valuable tools for future board members and the courts. Indeed, one of my proudest moments as a lawyer came when a court of appeals reversed the board “for the reasons stated by Member Meisburg.”

A recent NLRB decision involving an employer’s work rules illustrates the value of a powerful dissenting ...

New York Attorney General Eric T. Schneiderman announced yesterday that he has filed a “wage theft” lawsuit against Domino’s Pizza Inc., and several of its New York area franchisees. The case is particularly notable in that Schneiderman is pursuing a joint employer liability theory, seeking to hold Domino’s liable for the alleged wage payment violations of its franchisees. This is the first time Schneiderman has pursued such a claim in a wage payment case, and the lawsuit potentially opens a new front in federal and state enforcement agency attempts to expand the definition of what it means to be a joint-employer.

As we previously reported, the newly-enacted Defend Trade Secrets Act (DTSA) represents a significant new weapon for companies to prosecute trade secret violations. Among other features, the DTSA’s nationwide reach and its provision for judicial seizure, double damages, and attorneys’ fees provide a much more robust enforcement and remedy scheme than is currently available under many state laws.

Today, the U.S. Department of Labor published its final rule increasing the salary requirement for the Fair Labor Standards Act’s white-collar exemptions to $47,476 per year ($913 per week). Though the new salary level is not as high as the $50,440 per year level predicted by the DOL in its July 2015 proposed rule, the final rule nonetheless more than doubles the current salary requirement of $23,660 per year ($455 per week). The reason the salary requirement is somewhat lower than initially predicted is that the final rule applies the proposed 40% threshold to the average full-time salary compensation paid in the lowest-wage Census region, as opposed to applying the 40% threshold to the national salary average.

Congress gave companies a new weapon to fight trade secret theft this week. President Obama signed a law that addresses several issues that often mire trade secret litigation – cross border battles when multiple states are involved, venue and choice of law disputes, and lack of ability to seize trade secrets before they escape a state or the United States. Companies now have a civil federal cause of action (original federal jurisdiction) for trade secret theft and the ability to seize trade secrets through an ex parte temporary injunction procedure that could prove to be incredibly costly for the unfortunate company whose newly hired employee stole trade secrets from a former employer. There will be more to come on these elements over the next few weeks.

One year has passed since the National Labor Relations Board issued its controversial “ambush” election rules, and as expected, the rules have caused a substantial reduction in the time between a union’s filing of a petition and the conduct of the election.

But in a surprise to many employers, the rules so far have produced virtually no change in the number of union election petitions and union victories. Many had predicted that the shorter campaign period would result in more unionization.

A recent National Labor Relations Board decision found that particular provisions of an employer’s Code of Conduct unlawfully discouraged employees from engaging in Section 7 Activity.

Section 7 of the National Labor Relations Act protects an employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The Act further makes it unlawful for an employer to interfere with these rights.  What qualifies as employer interference is frequently considered by both the Board and courts.

The Eleventh Circuit confirmed that indefinite light duty is not a reasonable accommodation under the Americans with Disabilities Act (ADA), and employers are not required to create a permanent light-duty position for an employee.

Several new and expanded paid family leave programs signed into law this month present employers with administrative challenges and concerns about business productivity.

California

California’s Paid Family Leave (“PFL”) program, which took effect in 2004, was the first of its kind in the nation. Funded by employee contributions to the State Disability Insurance program, and administered through that program, PFL in California provides employees with partial wage replacement (currently 55%, up to a weekly maximum of $1,104 in 2015) for a period of up to six (6) weeks in order to bond with a new child, or to care for a parent, child, spouse or domestic partner with a serious health condition. This wage-replacement program does not guarantee job protection, so normally it is taken concurrently with job-protected leave under the federal Family and Medical Leave Act (“FMLA”) or its California analog, the California Family Rights Act.

Earlier this month, the San Francisco Board of Supervisors approved six weeks of fully-paid leave for new parents, the first city-wide legislation of its kind in the nation. Parents are entitled to the benefit if they have been employed by the employer for at least 180 days, work at least eight hours per week within the city or county of San Francisco, spend at least 40% of their hours per week working within the city or county of San Francisco, and are eligible to receive paid family leave from the State of California under the California Paid Family Leave law for the purpose of bonding with a new child. The new law requires that employers make up the difference between the benefit provided by the California Paid Family Leave law and 100% of the employee’s normal gross weekly wage.