Hunton Employment & Labor Perspectives

In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases.

More and more employers are faced with the following question -- can a transgender employee use the restroom associated with his or her gender identity? According to federal governmental agencies, the answer seems to be yes.

In American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont Gardens”), 362 NLRB 139 (June 26, 2015), the NLRB overruled longstanding precedent protecting the confidentiality of employee witness statements and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.” Since 1978, employee witness statements received by employers have been automatically exempt from disclosure to unions, no matter the circumstances. Now, as a result of Piedmont Gardens, an employer who cannot establish that it has a legitimate confidentiality interest that outweighs the union’s interest must disclose witness statements to the union in full. This will likely force employers to change the way they conduct investigations.

On July 15, 2015, the Department of Labor (“DOL”) issued guidance which it claims is designed to reduce the misclassification of employees as independent contractors under the Fair Labor Standards Act (“FLSA”). This guidance boldly claims that “most workers are employees under the FLSA’s broad definitions.” Based on this guidance, the DOL will likely aggressively argue that workers are employees subject to the FLSA – not independent contractors.

On April 14, the National Labor Relations Board changed its rules for processing union elections. The new rules stack the deck against employers by decreasing the time between the filing of a petition and the election, which means that an employer now has less time to educate its employees about the potential impacts of unionization. The new rules also add procedural requirements that employers must address, which can distract the employer from the more important task of running its campaign. Given the significant changes, many have questioned whether it is possible to win an ...

On July 13, 2015, California Governor Jerry Brown signed AB 304 amending the Healthy Workplaces, Healthy Families Act of 2014 clarifying certain terms of the law, effective immediately upon his signature.  The amendments overall make the law easier to implement and have answered many questions employers have had while preparing to meet the requirements of the original law’s effective date of July 1, 2015.  The following is a summary of the key changes to the law.

On July 6, 2015, the National Labor Relations Board invited interested parties and amici to submit briefs in Miller & Anderson, Inc., 05-RC-079249, in connection with the Board’s reexamination of whether temporary employees provided to a company by staffing agencies may be included in the same bargaining unit as the company’s direct employees.  Briefs are due by September 4, 2015.

In a closely watched case, Glatt v. Fox Searchlight Pictures, Inc. (decided July 2, 2015), the Second Circuit rejected the Department of Labor’s (“DOL”) intern test under the Fair Labor Standards Act (“FLSA”), and adopted a balancing test that focuses on whether the employee or the employer is the primary beneficiary of the relationship (“primary beneficiary test”).  This is important because interns are not considered employees, and thus, are exempt from the minimum wage and overtime provisions of the FLSA.

Yesterday, the Department of Labor (“DOL”) issued a proposed rule that is expected to significantly increase the number of employees who are eligible for overtime.  The proposed rule increases the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.  The rule applies to the FLSA’s executive, administrative, professional, and computer employees exemptions, but not the outside sales exemption which does not have a salary basis requirement.

A recent decision from the California Labor Commissioner’s Office found that a former Uber driver was an employee of the company, not an independent contractor as the firm has labeled its motorists.  The implications for Uber, as well as other companies with similar business models, could be far-reaching.