Hunton Employment & Labor Perspectives

On June 4, 2012, the California Court of Appeal held that class-action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (“FAA”).  In Iskanian v. CLS Transportation Los Angeles LLC, the appeal court affirmed an order to compel arbitration of wage-and-hour claims in light of the 2011 United States Supreme Court case AT&T Mobility LLC v. Concepcion.  As a result, Iskanian provides employers with the necessary ammunition to argue for the enforceability of employment contract provisions providing for arbitration of claims and waiver of class-action lawsuits.

The Seventh Circuit Court of Appeals recently ruled that discrimination on the basis of immigration status is not covered under Title VII.  In Cortezano v. Salin Bank & Trust Co., No. 11-1631, the facts involved spouses Kristi and Javier Cortezano.  Javier was an unauthorized immigrant from Mexico, while his wife Kristi was employed as a sales manager at Salin Bank. When Kristi’s supervisor discovered Javier’s unauthorized immigrant status, the bank initiated a process that ultimately led to Kristi’s termination.  Kristi filed suit against Salin Bank alleging, among other things, employment discrimination under Title VII.  The U.S. District Court for the Southern District of Indiana granted Salin Bank’s motion for summary judgment. 

It is commonplace in employment litigation to learn that a charge by a single employee of a discrete violation of law has become the basis for broad and far reaching requests for information and documents or that the EEOC has filed a complaint for hundreds of employees it has not even considered in its investigation or in its attempts at statutory conciliation.

In what has roundly been hailed as a landmark decision, the Equal Employment Opportunity Commission (“EEOC”) held in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 20, 2012) that, although no federal statute explicitly prohibits employment discrimination based on gender identity, transgender individuals may nonetheless state a claim for sex discrimination under Title VII.

On May 21, 2012, the Ninth Circuit Court of Appeals held in a split decision that the Americans with Disabilities Act (“ADA”) does not bar discrimination based on marijuana use unless that use is authorized under federal law.  In James v. City of Costa Mesa, No. 10–55769, the court held that even marijuana use under a doctor’s supervision in accordance with state law was not protected under the ADA.  The court held that the ADA excludes illegal drug users from its definition of qualified individuals with a disability.  Although generally-applicable California drug laws carve out an exception for uses of marijuana for medical purposes under doctor supervision, there are no such exceptions to the federal Controlled Substances Act.  Since the ADA defines “illegal drug use” by reference to federal law, and the federal law does not authorize marijuana use for medical purposes, the Ninth Circuit Court of Appeals decided that discrimination in the provision of public services based on marijuana use was not prohibited by the ADA.

In wage and hour collective actions, the "recruit, probe and multiply" nature of the litigation results in the redefinition of workers' duties, solicitation of collective groups, and countless depositions to establish liability, collectivity and damages. These tactics increase the costs for employers and make litigation impossibly expensive.

As noted yesterday in our post, the United States District Court for the District of Columbia’s decision to strike down the National Labor Relations Board’s “quickie” election rules was based on a highly technical analysis.  Specifically, the Court found that the Board failed to obtain a proper quorum of at least three Board Members because of Republican Member Brian Hayes’ limited involvement in the rulemaking process.  However, the Court indicated that the Board might have authority to issue the quickie election rules if it musters a legally recognized quorum.

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

The NLRB's "quickie election" rules will go into effect today, April 30, in light of a federal district court decision denying a Motion seeking an injunction against the rule becoming effective. The Court indicated that it would issue a written opinion before the date on which any election could be held under the new rules. Our calculation is that, at least for now, the minimum time necessary for an election to be held after the filing of a petition is 17 days.

The  Court's Order reads:  “As the parties discussed in a conference call with the Court at 5:00 p.m. on April 27, the Court ORDERS that ...