Hunton Employment & Labor Perspectives

On May 3, the Ninth Circuit ruled in Tides v. Boeing Co., No. 10-35238, that the whistleblower provisions of the Sarbanes-Oxley Act (“SOX”) do not protect employees who disclose information to the media. Although SOX bars public companies from retaliating against employees who report conduct that they reasonably believe constitutes certain types of fraud or securities violations to Congress, federal regulatory or law enforcement agencies, or a person with supervisory authority over the employee, the Ninth Circuit held that this protection does not extend to employee disclosures to the media. Federal appeals courts have previously ruled on press disclosures under other whistleblower statutes, but the Ninth Circuit’s ruling is the first to analyze such disclosures under SOX.

On April 27, the U.S. Supreme Court decided that the Federal Arbitration Act (“FAA”) preempts rules created by states, such as California, that classify most class action arbitration waivers in consumer contracts as unconscionable.  The Court’s 5-4 decision in AT&T Mobility LLC v. Concepcion, 2011 WL 1561956 (U.S. Apr. 27, 2011) could signal big changes for consumer − and potentially wage and hour − class action litigation.

The Obama administration continues to move forward on implementing the Patient Protection and Affordable Care Act of 2010, as amended (the "Health Care Reform Act"), as it has recently issued additional guidance on the grandfather rules for group health plans and the new Form W-2 rules for reporting the cost of employee group health coverage. Of note, the guidance reaffirms that the W-2 reporting of group health coverage costs will not be required until 2012, which means that any such reporting for 2011 will remain optional. The guidance also provides some important clarification on ...

The National Labor Relations Board (“NLRB”) regional offices addressing complaints involving employers’ social media policies must seek advice from the NLRB’s Division of Advice before taking any action. The memorandum, issued by the NLRB’s Office of the General Counsel on April 12th, added social media disputes to the list of matters that must be submitted to the Division of Advice.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues. 

Most of us have sent a text while driving, and we all know that this practice can be dangerous. This is as true on the rural roads of America, as it is on the busiest of freeways. It is no surprise, with all of our technological distractions, that motor vehicle crashes are consistently the leading cause of worker fatalities. It is also no surprise that OSHA has taken notice of this issue and is taking action. OSHA is prepared to start issuing citations and fines to employers for distracted driving by employees.

In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

Disability discrimination claims have long been difficult for employees to pursue in court. Although employers are often grappling with reasonable accommodation and leave issues in the workplace, such issues have typically not spilled into the courtroom. One reason for that has been the difficulty in proving an employee has a “disability.” The final regulations issued by the EEOC in March 2011 could change all of that. The new regulations, interpreting the ADA Amendments Act of 2008 (ADAAA) expand the definition of “disability” and otherwise remove several impediments to pursuing lawsuits under the ADA. This should lead to an increase in ADA litigation.

The Bright v. 99 Cents Only Stores decision, issued by the California Court of Appeal for the Second Appellate District last November, illustrates a recent wage and hour class action litigation trend against retail employers in California over lack of “suitable seating” for their employees. The California Supreme Court denied review of this case in February 2011.

An employer who allegedly posted to an employee’s Facebook and Twitter accounts without her consent may face liability for its actions, according to a federal judge in Illinois. The case is Maremont v. Susan Fredman Design Group, Ltd., in the U.S. District Court for the Northern District of Illinois (2011 U.S. Dist. LEXIS 26441, March 15, 2011).

In a pro-business decision, the Los Angeles Superior Court Appellate Division recently established state standards for damages and standing for California public accessibility cases in Mundy v. Pro-Thro Enterprises, 2011 WL 600619 (Cal. App. Dep't Super. Ct. Jan. 7, 2011).