Hunton Employment & Labor Perspectives

The Office of Federal Contract Compliance Programs (“OFCCP”) has a long history of attempting to assert jurisdiction over hospitals.  A recent federal court ruling confirms that, despite some recent victories for hospital employers in this area, hospitals may indeed find themselves subject to OFCCP jurisdiction.

The U.S. District Court for the District of Columbia recently ruled in UPMC Braddock v. Harris, D.D.C. No. 09-01210 (2013), that three Pittsburgh hospitals are covered federal government “subcontractors” because they contracted with an HMO to provide medical services to Federal employees and their beneficiaries.  The court found the hospitals’ provision of medical services was “necessary” to the HMO’s contract with the Office of Personnel Management (“OPM”).

On March 13, 2013,  the New York City Council, over Mayor Bloomberg’s veto, passed a law prohibiting discrimination against the unemployed in hiring.  The law, effective June 11, 2013, amends the New York City Human Rights Law to expand the class of protected individuals to include the unemployed.  The law applies to employers in New York City who employ four or more persons (including employees and/or independent contractors).  The law defines an unemployed person as someone “not having a job, being available for work, and seeking employment” and prohibits covered employers from basing employment decisions “with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant’s unemployment.”  Additionally, it prohibits all employers from advertising that a particular position requires applicants to be currently employed or that the employer will not consider applicants who are unemployed.

Many buyers in asset sales may assume that if the seller and buyer agree that the buyer does not assume the seller’s liabilities, the buyer would have no liability for employment-related issues pertaining to the seller prior to the sale.  A recent Seventh Circuit decision authored by the influential Judge Posner in Teed v. Thomas & Betts Power Solutions, L.L.C. reminds purchasers that their assumption is not necessarily true, as the Seventh Circuit noted that when liability is based upon a violation of a federal labor or employment statute, courts apply a more aggressive standard of successor liability than the typical state-law standard to which courts might otherwise look.

On March 27, 2013, the U.S. Supreme Court held that evidence of class-wide injury must survive a “rigorous analysis” before a putative class can be certified.  Comcast Corp. v. Behrend, No. 11–864, 2013 WL 1222646, at *5 (U.S. March 27, 2013). While the Comcast case involved subscribers to Comcast’s cable television service who filed a class action lawsuit alleging anti-trust violations and monopolization, the decision is significant for employers facing class actions.

The 2012-2013 flu season continues to take a toll on the workplace.  According to the Centers for Disease Control (”CDC”), this year’s flu season began four weeks earlier than most recent seasons and, as of the week ending March 9, 2013, flu season activity has remained elevated across the United States.  Having already taken the lives of 64 children, and with adult numbers  unavailable until the end of the flu season, many employers are considering the implementation of mandatory flu vaccination policies.  While such policies may serve business and safety needs of protecting their workplace and workforce, employers should ask themselves the following three questions before adopting such a policy:

A pending federal case highlights some of the wage-and-hour pitfalls emerging from the use of e-mail and smartphones.  Chicago Police Department Sergeant Jeffrey Allen originally filed his suit, alleging overtime compensation violations under the Fair Labor Standards Act (FLSA) in 2010.  On January 14, 2013, U.S. Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, granted Allen’s conditional certification for a collective action under the FLSA.  In his suit, Allen claims that the City of Chicago violated the FLSA when it failed to compensate him, an hourly non-exempt employee, and a putative class of Chicago police officers for time spent reading and responding to emails via city-issued BlackBerries outside of normal working hours.

California employers may be familiar with Wang v. Chinese Daily News, a wage-and-hour class action that has been in litigation for almost a decade. The latest decision in this case, a published opinion from the Ninth Circuit on March 4, 2013, offers a boost to defense counsel who face a class actions in this circuit.

The Florida Supreme Court issued an opinion on March 7, 2013 that eliminated an oft-used tool in the defense arsenal by limiting application of the economic loss rule to products liability cases.

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On March 19, in The Standard Fire Insurance Company v. Knowles, No. 11-1450, the United States Supreme Court ruled that stipulations by a named plaintiff on behalf of a proposed class prior to certification cannot serve as the basis for avoiding federal jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”).

Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP” or “Office”) has rescinded two guidance documents implemented during the Bush administration that outlined methods for investigating and evaluating pay discrimination claims against federal contractors and replaced them with new guidelines emphasizing a case-by-case approach that provides investigators with authority to conduct more thorough investigations and identify a broader range of compensation-related discrimination.  The first document, Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (“Compensation Standards”), set forth the procedures OFCCP followed when issuing a notice of violation for pay discrimination; and the second document, Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 (“Voluntary Guidelines”), contained directions that federal contractors themselves could follow to preemptively show compliance with their obligation to evaluate their internal pay practices for fairness.