Hunton Employment & Labor Perspectives

On March 8, 2013, USCIS issued a major revision of its Form I-9 Employment Eligibility Verification form, pursuant to a Federal Register announcement.

The newly revised Form I-9 adds data fields, including the employee’s foreign passport information, telephone and email address; improves and expands the form's instructions (now six pages); and revises the form layout to two pages, one for the employee and one for the employer.
 
Employers should begin using the new Form I-9 immediately, but are required to use it beginning May 7, 2013.  On that date, all prior versions of Form I-9 – ...

The Internal Revenue Service recently issued an updated version of the Employee Plans Compliance Resolution System (“EPCRS”), which allows companies to voluntarily correct errors in the administration and documentation of their retirement plans (including 401(k) and 403(b) plans).  IRS Revenue Procedure 2013-12 continues EPCRS, but makes a number of changes and adds clarity to several areas of the program that caused confusion in the past.

What should an employer do when a pregnant employee has used all of her allotted leave under CFRA (the California Family Rights Act) and PDLL (Pregnancy Disability Leave Law) but is still not yet able to return to work? Following the appellate court’s recent decision in Sanchez v. Swissport, Inc., No. B237761 (Cal. Ct. App. Feb. 21, 2013), the employer may be required to grant even more leave.

CNN is reporting that a Colorado school has decided that a 6-year-old boy, who identifies as a girl, and whose family is raising her as a girl, must use the boy’s bathroom or the staff or nurse’s bathroom for sick children.  The family is worried about the stigmatizing impact this would have, and is worried about bullies, and has decided to keep the child home for now. 

This story brings the national spotlight on an issue that employers are increasingly facing in the workplace. Transgender is a protected class in many cities and states across the Country, including ...

Following the Supreme Court’s game-changing decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), courts have struggled to determine the level and nature of proof a class plaintiff must present at the class certification stage. This is especially so when it comes to the requirements related to commonality: that there be questions of law or fact common to the class and that the common questions predominate over any questions affecting only individual class members. Fed. R. Civ. P. 23(a)(2), (b)(3). Recently, Chief District Judge George King of the Central District of California refused to certify a wage-and-hour class on the ground that plaintiff was unable to establish commonality. See Pedroza v. PetSmart, Inc., No. ED CV 11-298-GHK (DTBx) (C.D. Cal. Jan. 28. 2013) (minute order).  This detailed order offers many great lessons for wage-and-hour actions brought on a class basis.

In Harris v. City of Santa Monica, No. S181004 (Cal. Feb. 7, 2013), the California Supreme Court held that a plaintiff can establish a claim of employment discrimination by showing that discrimination was a substantial motivating factor in the decision-making process.  The Supreme Court also held that even if a plaintiff establishes that discrimination was a substantial motivating factor in the decision-making process, the defendant is entitled to establish a “mixed motive” defense by proving that legitimate factors would have been sufficient, absent the discrimination, to produce the same decision.  On the surface, these two holdings appear contradictory.  That each of those propositions is true highlights the significance of the Court’s rulings on remedies.  Even if the defendant establishes its mixed motive – or same-decision – defense, that defense does not immunize the employer from liability.  Instead, the plaintiff may potentially be entitled to declaratory or injunctive relief, and may recover attorneys’ fees even though the employer successfully establishes its defense.

As reported on Hunton & Williams’ Privacy and Information Security Law Blog, on January 25, 2013, Kmart Corporation (“Kmart”) agreed to a $3 million settlement stemming from allegations that it violated the Fair Credit Reporting Act (“FCRA”) when using background checks to make employment decisions. The FCRA addresses adverse actions taken against consumers based on information in consumer reports and includes numerous requirements relating to the use of such reports in the employment context.

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On January 14, 2013, the Department of Labor (“DOL”) issued guidance further defining the meaning of “son or daughter” within the Family and Medical Leave Act (“FMLA”).  The FMLA provides qualified employees up to 12 weeks of leave within a 12 month period to care for a son or daughter with a serious health condition.  Under certain circumstances, a son or daughter may include an individual over the age of 18, if that individual has a disability.  The DOL now clarifies, that a child over the age of 18 with a disability may qualify as a son or daughter within the FMLA, regardless of the individual’s age when the disability occurred.

Earlier today the D.C. Circuit issued its decision in Noel Canning, v. NLRB finding that President Obama’s January 4, 2012 recess appointments of NLRB members Griffin, Block and Flynn (who has since resigned) were unconstitutional.  The Court therefore concluded that the Board lacked the required quorum needed to conduct business and therefore that its ruling on the merits of the case was void.  In reaching this determination, the Court interpreted the meaning of “recess” within the Appointments Clause, finding that it referred only to intersession recesses – that is, the ...

In numerous prior posts, we have reported about the pro-labor decisions and regulatory changes by the Democratic-majority National Labor Relation Board.  Unfortunately, the Board is at it again, this time in WKYC-TV, Inc., 359 NLRB No. 30 (2012) , reversing a fifty-year-old precedent regarding the effect of contract expiration on a dues checkoff clause contained in the expired contract.