Hunton Employment & Labor Perspectives

Michigan GOP leaders announced plans on December 6, 2012, to fast track “right to work” legislation during the lame duck session.  Just hours after the legislation was introduced and amid protests at the state Capitol, both the state Senate and House of Representatives approved bills prohibiting private-sector unions from requiring non-union employees to pay union dues as a condition of employment.  The Senate also quickly voted to approve a bill banning public-sector unions, except those representing police officers and firefighters, from requiring non-union members to pay union dues. 

Last Monday, the United States Supreme Court heard oral argument in Vance v. Ball State University in order to resolve a circuit split over how much authority an alleged harasser must have to be considered a supervisor.  The definition of supervisor is important because two earlier Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), establish that employers may be found vicariously or strictly liable for the conduct of supervisors who discriminate against or harass subordinate employees.

The growth of social media as a low-cost, widely-accessible form of communication has made it an ideal tool for businesses large and small to market themselves and reach out en mass to consumers in a manner more direct, personal, and in many ways effective than traditional media.  With Americans spending more time on-line than ever before, the value of such social media accounts can be considerable.  So when an employee who has used social media to develop his employer’s business and goodwill resigns, who owns the account, the contacts, and valuable consumer data that come with it?

The Patient Protection and Affordable Care Act provides that group health plans may not apply a waiting period of more than 90 days for plan years beginning after December 31, 2013 (January 1, 2014 for calendar year plans).  IRS Notice 2012-59, which was issued earlier this year, provides guidance on how employers should apply this rule.

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Arbitration provisions are increasingly a focus in non-competition litigation these days and are being used in a variety of strategic ways to assist with the enforcement of non-competition clauses.  The United States Supreme Court recently held that an arbitrator, not a state court, should have decided the enforcement of non-competition clauses.  The employer filed for arbitration when two of its employees, who had arbitration provisions in their employment contracts, went to work for a competitor.  The employees filed a state court action challenging the enforcement of the ...

In an opinion issued on October 18, 2012, the Federal District Court of Massachusetts provided clarity and relief for private equity firms on the significant, but murky, question of whether a private equity fund can be liable for the ERISA pension obligations (including multiemployer withdrawal liability and defined benefit pension plan underfunding) of its portfolio companies.

In September, the Newark Municipal Council passed Ordinance 12-1630, which prohibits any employer with five or more employees from asking job candidates before or during the application process about their criminal history (i.e., the ordinance “bans the box” from an employment application). 

The employer shared responsibility rules under the Patient Protection and Affordable Care Act will go into effect in 2014.  Government guidance was issued earlier this year on an important aspect of these rules – the determination of who is a full time employee.

The Supreme Court of Virginia recently ruled in VanBuren v. Grubb that supervisors or managers who participate in the termination of an employee may be held liable in claims of wrongful discharge.  This ruling is significant because it places supervisors in the shoes of their employers and threatens them with liability.

The National Labor Relations Board’s (“NLRB”) General Counsel recently released an analysis of contested at-will employment clauses in two employment handbooks and ultimately concluded that neither violated the National Labor Relations Act (“NLRA”).

Employees had filed charges with the NLRB alleging that the at-will employment clauses contained in the employee handbooks distributed by Rocha Transportation, a California trucking company, and SWH Corporation d/b/a Mimi’s Café, a restaurant in Arizona, defined at-will employment so broadly that employees would reasonably think that they could not engage in activity protected by the NLRA.  The clause contained in Rocha Transportation’s handbook advised its employees that their employment is at-will and may be terminated at any time.  It also stated that “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the president of the Company has the authority to make any such agreement and then only in writing.”  Mimi’s Café’s description of at-will employment in its handbook included the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.”  The NLRB’s Division of Advice prepared two memos which found that each of the clauses described above were lawful.