Hunton Employment & Labor Perspectives

The NLRB’s Office of the General Counsel recently issued an internal directive regarding the manner in which NLRB Regions prosecute duty of fair representation charges against unions.  Under the National Labor Relations Act, unions have a duty of fair representation to the members of the bargaining unit it represents by engaging in conduct that is not arbitrary, discriminatory or in bad faith, particularly with regard to the processing of worker grievances.  Board law has established (and unions typically offer as a defense) that “mere negligence” alone does not amount to arbitrary conduct that would serve to breach the duty of fair representation.

Sexual harassment is a recurring theme in the bills signed into law by California Governor Jerry Brown on September 30, 2018.  These new laws, which take effect on January 1, 2019, continue the trend of expanding protections for California employees.

 Hush-Money – Three of the bills signed by Governor Brown on September 30 target settlement agreements that prohibit disclosure of sexual harassment claims. AB 3109 makes void and unenforceable any provision in a contract or settlement agreement that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.  SB 820 prohibits settlement agreements from including a provision that prevents the disclosure of factual information related to claims of sexual assault and sexual harassment.  However, this bill does not prohibit confidentiality of the settlement amount.  SB 1300 voids any agreement in which an employee forfeits his or her right to disclose unlawful acts in the workplace, including acts of sexual harassment.

Redefining The Hostile Work Environment Standard – SB 1300 also declares that a single incident of harassing conduct could be sufficient to create a triable issue regarding the existence of a hostile work environment in certain circumstances.

As we previously reported, the United States Supreme Court held this past Term in Epic Systems Corp. v. Lewis that class action waivers in arbitration agreements do not violate the National Labor Relations Act.  In the wake of Epic Systems, courts have found that class action waivers are likewise permissible under the FLSA.  These cases make clear that class action waivers are here to stay.

The Consumer Financial Protection Bureau (“CFPB”) issued a new “A Summary of Your Rights Under the Fair Credit Reporting Act” (“FCRA”)  (“Summary of Rights”) form on September 12, 2018.  This form replaces the previous version issued on November 12, 2012, and is expected to be implemented by employers on September 21, 2018.

Hunton Andrews Kurth special counsel and former NLRB general counsel Ronald Meisburg recently wrote an article, “Navigating NLRB: Attacking Instability With APA Rulemaking”, as part of Law360’s Expert Analysis series.  

The OFCCP vowed things would change after President Trump’s election.  It is making good on that promise.  The Agency issued three new Directives in the last two weeks, following four others earlier this year.  One of these Directives was long-awaited new guidance on pay analyses, replacing Directive 307.  And, the OFCCP has a new Acting Director, Craig Leen (see our earlier post for the exciting news about the immediate-past Director, Ondray Harris, joining our firm).

The good news for contractors is that the OFCCP’s actions are almost all pro-business, aimed at making the Agency more transparent, objective, and efficient.

Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.

While there is overlap between the State and City requirements, there are differences that employers should note.

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act (“NLRA”).  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act (“FLSA”), at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that the National Labor Relations Act (“NLRA”) does not prohibit the use of arbitration agreements with class/collective action waivers covered by the Federal Arbitration Act (“FAA”).   The Sixth Circuit has now concluded in Gaffers v. Kelly Services, Inc.  that the Fair Labor Standards Act (“FLSA”), like the NLRA, does not bar the use of arbitration agreements with class/collective action waivers.