Hunton Employment & Labor Perspectives

Though the primary focus of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) is the reduction of systemic risk in financial markets and increased regulation of large financial institutions, Dodd-Frank also contains executive compensation, corporate governance and enforcement provisions applicable to most public companies.  Some of these provisions are highlighted below.  For more insights on the full range of business and legal issues associated with current market and regulatory changes, including the Dodd-Frank Act’s executive compensation, corporate governance and enforcement provisions, please visit Hunton & Williams LLP's Financial Industry Resource Center.

An Indiana nursing home was found in violation of Title VII this month for acceding  to a resident’s request for white-only healthcare providers.  In Chaney v. Plainfield Healthcare Ctr., No. 09-3661 (7th Cir. July 20, 2010), a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit reversed a lower court’s ruling in favor of the nursing home and held that this was a clear violation of Title VII.

The nursing home, Plainfield Healthcare Center (“PHC”), housed a resident who did not want assistance from black nursing assistants.  PHC complied with this racial ...

The United States Departments of Health and Human Services, Labor, and the Treasury issued a series of regulations related to the Patient Protection and Affordable Care Act, as amended (the “Health Care Reform Act”).  The regulations provide guidance for group health plans, including new rules for preexisting conditions, annual/lifetime limits, and coverage rescissions.

The Department of Labor’s Wage and Hour Division recently issued a fact sheet explaining employers’ obligations under the break time requirement for nursing mothers found in the Patient Protection and Affordable Care Act, which amends Section 7 of the Fair Labor Standards Act (“FLSA”).

The Dodd-Frank Wall Street Reform and Consumer Protection Act just signed into law by President Obama, H.R. 4173, 111th Cong. (2010) (“Dodd-Frank”), creates new statutory rights and incentives for whistleblowers and also expands already existing rights, such as under the Sarbanes-Oxley Act (“SOX”).  Now more than ever, clear policies and procedures backed by strong audit, compliance and investigatory functions are critical to managing the anticipated increase of regulatory enforcement and private party whistleblower litigation that this expansive legislation likely will create.

The National Defense Authorization Act for Fiscal Year 2010 further expands the recent amendments to the Family and Medical Leave Act (FMLA), which provides leave to qualified employees to care for family members with needs relating to military service.   However, for those employers who rely exclusively on the Department of Labor website for their required postings and certification forms, beware - portions of the Department of Labor’s website have not yet been updated to reflect these changes and reliance upon these outdated materials may cause an employer to inadvertently, yet unlawfully, deny an employee his or her rights under the FMLA.

As was predicted following the passage of the ADA Amendments Act of 2008 (ADAAA), which went into effect in January 2009, there has been a subsequent surge in the filing of lawsuits under the Americans with Disabilities Act (ADA).  Lawsuits brought under the ADA now comprise the highest percentage of claims filed by former employees.  When compared with the number of ADA-related lawsuits filed in the first three months of 2009, there has been a nearly 40% percent increase in the number of ADA-related suits filed in 2010  during the same period.  Moreover, the second quarter of 2010 saw the number of ADA-related lawsuits increase by 15% over those filed in the first quarter.

In Waffle House v. Cathie Williams, the Texas Supreme Court on June 11, 2010, rejected the idea that a plaintiff who prevailed on a sexual harassment claim under §21.0015 of the Texas Labor Code could instead opt to recover damages under a more generous common law scheme. The Court held that plaintiff could only recover under the Texas Commission on Human Rights Act (TCHRA).

In what has been deemed a victory for many non-traditional families, on June 22, 2010, the U.S. Department of Labor (“DOL”) issued an opinion clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”).  Now, according to the Administrator’s Interpretation Letter No. 2010-3, any employee who “intends to assume the responsibilities of a parent with regard to a child” and has either “day-to-day” responsibilities for, or “financially supports” that child, is entitled to leave under the Act -- even if that employee does not have a traditional biological or legal relationship with the child.

The NLRB has issued an RFI (Request for Information) to identify firms who can provide the means for employees at businesses across the country to "vote" electronically on whether they want union representation.  The idea would be that, sitting in the comfort of their own home . . . or the union hall, employees can use a computer, telephone or some other electronic means to register their choice on election day.  This method of voting, so the argument goes, avoids the "intimidation" employees may feel when voting in a voting booth by secret ballot at their place of employment.  Not only that, it would save the NLRB money by avoiding the need to send field agents to the companies where elections are scheduled.  No ballot, no voting booth, no assurance of privacy, and no protection from someone looking over the employee's shoulder, or worse, as she votes.  And electronic voting can be ordered administratively by the agency in the dead of night rather than through legislation undertaken in the light of day.