Hunton Employment & Labor Perspectives

Under the Fair Labor Standards Act (FLSA), employers who use a tip credit to satisfy their minimum wage obligations for tipped employees must follow certain rules related to those tips.  One of those rules relates to  the use of tip pools – i.e., pooling of tips received by multiple tipped employees and then dividing the total among the pool participants based on a specified formula.  Under Section 3(m) of the FLSA, employers who rely on the tip credit and who require their tipped employees to contribute their tips to a tip-pooling arrangement must ensure that the only employees who participate in the pool are those that “customarily and regularly” receive tips.  This typically means that managers, hostesses, cooks, dishwashers, and other non-tipped employees cannot participate in the tip pool if the employer wants to rely on the FLSA’s tip credit.

The Equal Employment Opportunity Commission (“EEOC”) has issued proposed rules regarding the extent to which employers may offer inducements for providing information about the current or past health status of an employee’s spouse without violating the Genetic Information and Nondiscrimination Act (“GINA”).

We previously have discussed that, as expected, the implementation of the NLRB’s ambush election rules in April 2015 considerably shortened the average time between the date of a petition being filed by a union and the date of election.  This change substantially impacts the employer’s ability to conduct an effective campaign in the event of a union petition.

The Equal Employment Opportunity Commission (“EEOC”) has implemented nationwide procedures which require all EEOC offices to release copies of an Employer's entire position statement, together with all non-confidential documents submitted in support of the position statement, to an Employee who has filed a discrimination charge, or his or her representative (including attorneys). These procedures apply to all position statements requested after January 1, 2016. Previously, such disclosures were made in the discretion of the particular field offices or investigators, and practices were inconsistent. As often as not, EEOC investigators might summarize the Employer’s evidence and arguments for the Employee, in order to solicit the latter’s response.

In February of 2016, the Equal Employment Opportunity Commission (“EEOC”) released detailed information and statistics summarizing the charges of discrimination that the agency received throughout its 2015 fiscal year. The EEOC is the administrative agency charged with implementing and enforcing a number of federal anti-discrimination employment statutes, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). Under each of these statutes, employees seeking to bring a claim of unlawful discrimination, harassment, or retaliation must first file a charge with the EEOC. The recently released report provides helpful information regarding the types of charges that employees filed in the 2015 fiscal year, which ran from October 1, 2014 to September 20, 2015.

The United States Supreme Court has denied a restaurant manager’s petition seeking review of whether parties may stipulate to the dismissal with prejudice of a lawsuit alleging violations of the Fair Labor Standards Act (“FLSA”), or whether judicial or Department of Labor (“DOL”) approval is a prerequisite to such a dismissal, as the Second Circuit held in his case, Cheeks v. Freeport Pancake House, Inc.  Having declined the petition for writ of certiorari, FLSA lawsuits will remain more difficult to resolve for employers in New York, Connecticut, and Vermont.

On January 21, 2016, the EEOC announced that it will seek public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws.  The EEOC issued its last guidance update on the subject of retaliation in 1998.  The EEOC’s 73 page draft guidance is available for review here and the 30-day input period ends on February 24, 2016.

As previously reported, the EEOC announced on January 29, 2016 its proposal to require businesses with 100 or more employees to annually turn over pay data by gender, race and ethnicity.   The public has until April 1, 2016 to submit comments on the proposal.  Both the Retail Industry Leaders Association (RILA) and the U.S. Chamber of Commerce have issued statements that the proposed requirements would be overly burdensome for employers and would result in the collection of data that would fail to provide any meaningful insights as to whether employer pay practices are discriminatory.  ...

This webinar will discuss President Obama’s Executive Order on federal contractor blacklisting and its potential impact on government contractors. A final regulation is on the horizon, and this program will tell you what you need to know NOW to be prepared.

Thursday, February 18, 2016
1:00 p.m. – 2:00 p.m. ET

Register Here

The Equal Employment Opportunity Commission (“EEOC”) is asking the Eleventh Circuit Court of Appeals to recognize that discrimination based on an employee’s sexual orientation constitutes unlawful discrimination “because of . . . sex,” in violation of Title VII of the Civil Rights Act of 1964.

The EEOC advances this argument in an amicus brief in support of Barbara Burrows, a lesbian college professor and administrator who claims she was subjected to sex discrimination by her former employer, the College of Central Florida, based on her same-sex marriage and how she looked and acted. The District Court granted summary judgment in favor of the College, holding that Burrows’s sex discrimination claim was “merely a repackaged claim for discrimination based on sexual orientation, which is not cognizable under Title VII.” Burrows appealed, and the case is currently pending before the Eleventh Circuit.