Hunton Employment & Labor Perspectives

Two members of the National Labor Relations Board recently held that employers may not require employees to enter into arbitration agreements, as a condition of employment, that waive the ability to pursue class or collective claims. The Board’s ruling does not sound the death knell for class action waivers, however, as many Plaintiff’s lawyers have touted.

The U.S. Department of Labor provides general information and compliance guidance regarding numerous wage, hour, employment, and labor laws via “fact sheets” which are available to employees, employers, and the general public. Fact sheets can serve as helpful reference and compliance material for employers. On December 23, 2011, the DOL issued three new fact sheets on the issue of unlawful retaliation.  These newly released fact sheets address retaliation under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Workers Protection Act (“MSPA”).

On December 15, 2011, the Department of Labor issued proposed rule changes that would extend the Fair Labor Standards Act’s minimum wage and overtime protections to the roughly two million in-home caregivers providing services to the elderly and infirm.  If enacted, the changes would eliminate the FLSA’s longstanding companionship and live-in domestic service exemptions, and likely lead to a major change in the in-home care worker industry.

On Monday, the National Labor Relations Board swore in three new Board Members.  The NLRB now has a full Board with five Members for the first time since August 2010.  The new members -- Sharon Block, Terence F. Flynn, and Richard Griffin -- were named by President Obama on January 4, 2012, as recess appointments.

Their membership on the Board will likely be a continuing source of political friction and legal controversy since the Senate was not formally in recess at the time the President announced their appointments.  The U.S. House of Representatives Education and Workforce Committee ...

The Ninth Circuit did an about-face last week by reversing its earlier decision in Sepulveda v. Wal-Mart and nixing the proposed class action.  The decision is further evidence of the post-Dukes difficulty plaintiffs face when attempting to certify Rule 23(b)(2) classes seeking monetary relief.

In a political shocker, President Barack Obama announced Wednesday that he will make recess appointments to immediately fill three NLRB Board Member vacancies.  President Obama’s appointees include two Democrats, union lawyer Richard Griffin and Labor Department official Sharon Block, and one Republican, NLRB lawyer Terence Flynn.

President Barack Obama recently announced that he intends to nominate Sharon Block and Richard Griffin to the National Labor Relations Board (“NLRB”).

Block and Griffin (both lawyers) have significant experience working to advance organized labor policies.  Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  She was previously a senior labor counsel for the Senate Health, Education, and Labor and Pensions Committee and worked for Senator Edward Kennedy during that time.  Block also served at the NLRB as an attorney.  Griffin is the general counsel for the International Union of Operating Affairs, and he is a member of the board of directors for the AFL-CIO Lawyers Coordinating Committee.

We reported last week that the NLRB's new "ambush election rule," as it is called by some critics, is facing a federal court challenge from a coalition of business groups led by the U.S. Chamber of Commerce.  The filing of that litigation has interfered with the Board's plans to implement its employer notice posting rule, issued earlier this year.  That rule -- which requires private-sector employers covered by the NLRA to post a notice that tells employees about their right to unionize, gives examples of unlawful employer and union conduct and tells employees how to contact the NLRB with questions and complaints -- has also been challenged in the Chamber's lawsuit.  The NLRB earlier had postponed implementation of the rule until January 31, 2012.  The judge, however, recently told the parties to the suit that she did not think the Board's January deadline would allow them sufficient time to argue the merits of the rule.

On December 6, 2011, just five days after it heard oral arguments in the case, the Eleventh Circuit Court of Appeals affirmed a victory for a transgender woman, Vandiver Elizabeth Glenn, who sued her former employer, the Georgia state legislature, for violating the Equal Protection Clause of the United States Constitution.  A three-judge panel unanimously affirmed a summary judgment for the plaintiff, who was fired from the General Office of Legislative Council for undergoing a gender transition.

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.