Hunton Employment & Labor Perspectives

As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage.  Specifically, instead of assessing whether an employee could “reasonably construe” a workplace rule as barring the exercise of rights under the NLRA, the new test will evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule.  The results of the new balancing test will place the rule in one of three categories: Category 1 (lawful work rules), Category 2 (work rules that warrant individualized scrutiny in each case), or Category 3 (unlawful work rules).

Andrea Mickles filed a complaint against her employer Country Club Inc., alleging it had violated the Fair Labor Standards Act (FLSA) by improperly classifying her and other employees as independent contractors and failing to pay them minimum wage and overtime.  She filed her case as a collective action, and others opted into the case before any ruling on conditional certification.  Those opt-ins eventually provided the Eleventh Circuit with an opportunity to address an issue of first impression in any Circuit: What is the status of individuals who opt into a case that is never conditionally certified?

The Supreme Court of California has ruled that a general liability insurer must defend an employer against allegations of employee misconduct, reinforcing the breadth of (1) what constitutes an “occurrence” under an employer’s commercial general liability (CGL) policy and (2) the duty to defend regarding claims for negligent hiring, retention and supervision.

New regulations addressing national origin discrimination under California’s Fair Employment and Housing Act (FEHA) go into effect on July 1, 2018 – are you ready?  The regulations expand the definition of “national origin,” make language restrictions presumptively unlawful, and limit an employer’s ability to verify immigration status, among other significant changes.

In China Agritech, Inc. v. Resh, the U.S. Supreme Court held that putative class members cannot rely on equitable tolling to file new class actions under Rule 23 of the Federal Rules of Civil Procedure.

Resh was the third shareholder class action suit filed against China Agritech, Inc. under the Securities Exchange Act of 1934. The plaintiffs in the two previous suits settled their claims after the court denied their motions for class certification.

Legislative responses to the #metoo movement continue to develop across the country.   Joining this movement, New York State and New York City recently have passed some of the strongest anti-harassment laws on the books.  Below is a summary of key elements for private employers: 

In one of the most anticipated decisions of the term, the U.S. Supreme Court, in a 7-2 decision, dodged the key constitutional questions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, issuing a narrow opinion finding that the Colorado Civil Rights Commission displayed “impermissible hostility” toward a baker’s sincerely held religious beliefs.

California is the land of employment legislation, and 2018 is shaping up to be another year of change. We are less than six months into the year, and already several bills that could significantly impact California businesses—for better or for worse—are pending in the California legislature.

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A magistrate judge in the U.S. District Court for the District of Oregon recently made findings and recommendations to dismiss a purported class action against Kroger subsidiary Fred Meyer.  The suit alleges that the retailer’s background check process for prospective employees violates the Fair Credit Reporting Act by both failing to properly disclose that a report will be run, and failing to comply with the statute’s procedural requirements before taking adverse action against an applicant.

In a time when workplace violence seems to be on the rise, many companies have adopted a strict no tolerance policy even for conduct outside the workplace.  In California, however, employers need to be cognizant of the protections afforded individuals that may make such terminations riskier than the company may expect.  One employer got just such a reminder last week when a California jury returned an $18M verdict against it for terminating an employee after he was arrested for threatening his girlfriend outside of the workplace.