Hunton Employment & Labor Perspectives

The Department of Labor has announced the release of a Final Rule implementing Executive Order 13672, which prohibits discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. Executive Order 13672, signed by President Obama on July 21, 2014, amended Executive Order 11246 by adding sexual orientation and gender identity to the protected categories provided in the latter EO. The Final Rule will be effective 120 days after the date of its official publication in the Federal Register and will apply to government contracts entered into or modified after the effective date.

Integrity Staffing Solutions v. Busk
Oral argument was heard on October 8, 2014.  This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time.  The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.  29 U.S.C. §254(a)(2).  The district court dismissed plaintiffs’ claims, but the Ninth Circuit ruled against Integrity Solutions, a contractor to Amazon.com, holding that going through security was an “integral and indispensable” part of the shift and not a non-compensable postliminary activity.  The Second and Eleventh Circuits previously held that time in security screening is not compensable time.  Interestingly, the U.S. Department of Labor filed an amicus brief on the side of Integrity Staffing.

Last month, the voters of Massachusetts passed Ballot Question 4, which entitles all Massachusetts employees to earn and use sick leave (time).  In doing so, Massachusetts became the third state to guarantee sick leave, following California and Connecticut.  The Massachusetts law takes effect on July 1, 2015.

On November 12, 2014, the Ninth Circuit held  that sufficient specificity in pleading is required under the Fair Labor Standards Act (FLSA) in Greg Landers v. Quality Communications Inc.  The Ninth Circuit affirmed the dismissal of a proposed overtime class action.  While this was an issue of first impression for the Ninth Circuit, the decision falls in line with similar rulings made by the First, Second and Third Circuits and disagrees with the Eleventh Circuit holding that conclusory allegations that merely recite the statutory language are adequate.

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers.

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On November 6, 2014, the Eleventh Circuit reined in the Equal Employment Opportunity Commission’s (EEOC) use of a broad administrative subpoena in an investigation of an individual charge of discrimination.  The case is EEOC v. Royal Caribbean Cruise Lines Ltd.

On October 1, 2014 the Los Angeles City Council voted again to require large hotels to pay workers a minimum wage of $15.37, exclusive of gratuities, bonuses, or service charge distributions after first passing the bill 12-3 on September 24, 2014.  (A second vote was required under Los Angeles City Council rules because the first vote was not unanimous.)  Assuming Mayor Garcetti signs the bill, which he has reportedly already promised to do, the bill will go into effect on July 1, 2015, applying first to hotel employees at hotels with 300 or more guest rooms and then, on July 1, 2016, expanding its reach to hotel employees employed by hotels with 150 or more guest rooms.

On September 28, California Governor Jerry Brown signed into law AB 1897, a bill that extends liability for workers supplied by “labor contractors” to the contracting employer. The new law provides that a “client employer,” defined as a business entity that obtains or is provided workers to perform labor within its usual course of business from a labor contractor, will share responsibility and liability with the labor contractor for payment of wages and failure to secure valid workers’ compensation coverage. The definition of “client employer” excludes businesses with a workforce of fewer than 25 workers (including both employees and temp hires) and those with 5 or fewer temp workers at any given time. The law also includes an anti-retaliation provision.

Federal contractors and subcontractors were just required to file their 2013 VETS-100 and VETS-100A Reports by September 30th.  Going forward, those forms are being replaced by a new form – the VETS-4212 Report.  The Veterans’ Employment and Training Service (VETS)  has published a Final Rule that implements the changes.

This week the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) received approval from the Office of Management and Budget (OMB) for a revised Scheduling Letter and Itemized Listing (a.k.a, a “notice of audit”) for Service and Supply covered contractors.