Hunton Employment & Labor Perspectives

When negotiating a settlement agreement in an employment dispute, “no rehire” language is often a standard term.  This language typically bars the litigating employee from seeking re-employment with the former employer.  However, in California, at least one “no rehire” provision was invalidated because it was not narrowly tailored to the employer at issue.

In Golden v. California Emergency Physicians Medical Group (“CEP”), CEP terminated Dr. Golden’s employment, and he subsequently filed a lawsuit alleging racial discrimination.  The parties settled Dr. Golden’s claims, and CEP included a “no rehire” provision in the settlement agreement.  The provision states:

Hunton Andrews Kurth LLP is pleased to announce Ondray T. Harris, former director of the US Department of Labor’s Office of Federal Contract Compliance Programs, has joined the firm’s national labor and employment practice as special counsel in Washington.

At the OFCCP, Harris led the agency responsible for ensuring that federal government contractors and subcontractors achieve and maintain compliance with non-discrimination requirements. Previously, he led the Department of Labor’s initiative to assist private industries and states with creating apprenticeship programs and directed the operations of its Employment and Training Administration.

The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).

On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.

The Board’s recent vacating of this order is noteworthy for two reasons.

The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use.  Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.

The National Labor Relations Board issued a decision that serves as a reminder to employers of their bargaining obligations upon implementing changes to their business.  Rigid Pak Corp., 366 NLRB No. 137 (2018) involves a unionized company (“Rigid”) that manufactured and sold plastic products.  Rigid maintained an injection-molding division and a blow-molding division housed on different sides of its facility.  The injection-molding division manufactured open-head containers, lids, and crates while the blow-molding division manufactured plastic bottles.  In 2014, Rigid encountered various financial difficulties, and to address them, the company entered into a supply agreement to outsource its work to a third-party manufacturer.

After the Eleventh Circuit’s holding in Asalde v. First Class Parking Systems LLC 894 F.3d 1248 (11th Cir. 2018), more small employers may be subject to the requirements of the FLSA.  By expanding the “handling clause,” the case chips away at the degree of interstate commerce necessary for the FLSA to apply.

The California Supreme Court has ruled that California employers cannot rely on the federal de minimis doctrine to avoid claims for unpaid wages on small amounts of time.   Under the de minimis doctrine, employers may be excused from paying workers for small amounts of otherwise compensable time if the work is irregular and administratively difficult to record.  Federal Courts have frequently found that daily periods of approximately 10 minutes are de minimis even though otherwise compensable.

In Troester v. Starbucks Corporation, the California Supreme Court held that California wage and hour laws have not adopted the FLSA’s de minimis doctrine.  As a result, Starbucks was not permitted to avoid paying an employee who regularly spent several minutes per shift working off-the-clock.  The Supreme Court acknowledged, however, that there may be circumstances involving “employee activities that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”

California was one of the leading states to tackle pay discrimination by banning inquiries into salary history.  California Labor Code Section 432.3, which went into effect on January 1, 2018, prohibits public and private employers from seeking or relying upon the salary history of applicants for employment.  But some of the law’s terms were undefined and some of the provisions were unclear, so after Section 432.3 went into effect, employers had questions about how to remain compliant with the law when hiring new employees.

On July 18, the Department of Labor’s (DOL) Office of Labor-Management Standards issued a final rule rescinding the so-called “persuader rule,” a controversial Obama-era regulation requiring employers to disclose advice received regarding opposition to union efforts.