Hunton Employment & Labor Perspectives

Imagine that you are a company with two openings for the same position.  After selecting the two most qualified candidates, you offer each candidate a salary equal to his or her prior salary, plus 5%, pursuant to your established policy for setting new hire salaries.  On its face, your policy has nothing to do with sex, but does it violate the Federal Equal Pay Act?  This was the issue addressed by the Ninth Circuit Court of Appeals in the recent decision Rizo v. Yovino, No. 16-15372, slip op. at 11–12 (9th Cir. Apr. 27, 2017).

There has been a flurry of activity and uncertainty related to immigration issues since President Trump took office. Hunton & Williams partners Adam Rosser and Emily Burkhardt Vicente discuss the concerns faced by the business community and the future of the H-1B visa program in the US. View the 5-minute video here.

In an April 24, 2017 decision, the U.S. District Court for the District of Columbia denied a motion to dismiss filed by Bravo! Facility Services, Inc. (“Bravo!”) against a former employee who brought claims under the ADA, District of Columbia Human Rights Act, and the FMLA.  Bravo! asserted that the plaintiff should be barred under the doctrine of judicial estoppel from asserting her claims because she initially failed to disclose her employment discrimination claims in her chapter 7 bankruptcy case filed after her employment terminated.  The plaintiff had moved to reopen her bankruptcy case and amended her asset schedules to disclose the claims before filing suit against Bravo!  In denying Bravo!’s motion, the court distinguished these facts from other situations where a plaintiff fails to disclose a claim prior to filing suit or only after challenged by an adversary.

In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation.  The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII.  Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.

The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.

The continued proliferation of human trafficking for the purpose of labor exploitation remains one of the most serious threats facing companies.  But, it is not just a concern for companies doing business overseas. California has led the charge with its passage of the California Transparency in Supply Chains Act, a law that requires retail sellers and manufacturers doing business in that state to disclose their efforts to eradicate human trafficking in their direct supply chains.  (Cal. Civ. Code, § 1714.43).  The United Kingdom has enacted similar legislation with its passage of the Modern Slavery Act 2015.

The Second Circuit recently held that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists administer immunizations.  The Court’s decision overturned a jury verdict of $2.6 million in the pharmacist’s favor and reminds employers what it takes to show that a given function is “essential” and what accommodations are reasonable.  The former pharmacist had claimed Rite-Aid illegally discharged and retaliated against him, and refused to accommodate his disability—trypanophobia, or needle phobia—under the Americans with Disabilities Act and similar state law.

On March 27, 2017, President Trump signed H.J. Res. 37, blocking the Fair Pay and Safe Workplaces Rule, the controversial rule enacted by the Federal Acquisition Regulatory (FAR) Council in August 2016, that legislators have criticized as a method to blackball federal contractors. The bill’s signing follows the U.S. Senate’s March 6, 2017 vote of 49-48 (along party lines) to formally disapprove of the rule.

Published in Law360

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit’s recent panel decision in Salinas v. Commercial Interiors, Inc., which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem temperate at best.

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It has been ironclad law since the enactment of the Title VII of the Civil Rights Act in 1964 that the Act’s prohibition against discrimination “because of . . . sex” does not include sexual orientation.  Federal law does not prohibit employers from terminating someone for being gay or lesbian.  For now, at least.

The U.S. Court of Appeals for the Eleventh Circuit (covering Florida, Georgia, and Alabama) confirmed that proposition this month in Evans v. Georgia Regional Hospital.  On one hand, the court’s holding reinforced what it and every other federal appellate circuit already had determined.  On the other, the court showcased perhaps the most heated internal judiciary battle yet on this issue, which has percolated at high temperatures for the past few years.