Hunton Employment & Labor Perspectives

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).

Earlier this month, the U.S. Supreme Court ruled that the “cat’s paw” theory of employment discrimination -- that an employer can be liable for the discriminatory animus of an employee who influences, but does not make, an ultimate employment decision -- applies to claims brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the law that protects individuals called to military service during their private employment.  In a unanimous decision, the Court held that

“if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011).

Unemployment compensation is a federal-state program that provides benefits to eligible workers who become unemployed through no fault of their own. Under the system, the IRS collects from employers an annual payroll tax pursuant to the Federal Unemployment Tax Act (FUTA). The states also collect a payroll tax on a quarterly basis, which they use to pay benefits. The states are permitted to determine their own benefit eligibility requirements, the amount and duration of benefits and set the tax structure for employers so long as their standards do not conflict with federal law.

During the past 50 years, the American workforce has changed drastically. One of the most noticeable changes has been the absorption of immigrants into the workforce who do not speak English as their first language.

In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work. These so called “English-only” polices may violate the national origin protections of Title VII of the Civil Rights Act of 1964. Employers that implement these policies are at risk of being sued not only by employees who feel wronged by the policy, but also by the U.S. Equal Employment Opportunity Commission.

The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges.  See A Year In Review: EEOC Charges & Trends.  This wave of charges is historic -- not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.

Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.

A commonly used pre-employment screening method--conducting credit checks--has drawn increased scrutiny in recent months. Legislatures at the state and federal levels are considering bills that would limit employer use of credit checks. Moreover, two recently-filed lawsuits, one of which was filed by the EEOC, seek to challenge the use of pre-employment credit checks in hiring decisions. 

Only four states--Hawaii, Illinois, Oregon, and Washington--currently have laws regulating employer use of credit history data. Sparked by the downturn in the economy, fourteen additional states--California, Colorado, Connecticut, Indiana, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New Mexico, New York, Pennsylvania, Texas, Vermont--are considering similar measures.

In a recent case called Southwest Regional Council of Carpenters (New Star General Contractors, Inc.), the National Labor Relations Board upheld a fairly common Union street tactic of calling attention to the Union’s dispute with a so-called “primary” employer by displaying a large banner in front of the worksite of a “secondary” employer who happens to be utilizing workers from the “primary” employer. Typically, the dispute between the Union and the “primary” employer is over the “primary” employer’s failure to use Union workers or pay Union-scale wages. By publicly advertising its dispute with banners in front of the “secondary” employer, the Union hopes to “shame” the “secondary” employer. 

In response to President Obama’s re-nomination of Craig Becker to the National Labor Relations Board, all forty-seven Republicans in the U.S. Senate submitted a letter to Mr. Obama on February 1 urging him to withdraw Becker’s nomination.  Becker’s July 2009 nomination to the Board failed in the Senate in the spring of 2010, but the President gave Becker a controversial recess appointment that allows him to serve from his swearing-in on April 5, 2010 until the end of the Senate’s 2011 session, despite the Senate’s rejection of his nomination.  President Obama’s re-nomination of Becker, if successful, would allow Becker to serve until December 16, 2014.

Thursday, February 24, 2011
12:00 p.m. - 1:00 p.m. CST

The program will provide an overview of the current state of the health care reform legislation, including the political climate, recent and expected legislative activity, litigation questioning the constitutionality of the law, and a practical look at what employers, group health plans, and health care providers should be doing now.

On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act (FSMA), which seeks to promote food safety by enacting strict safety standards in the food industry. In addition to the enactment of safety standards, Section 402 of the FSMA ensures sweeping protections for whistleblowers in the industry. The FSMA whistleblower protection applies to any “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The anti-retaliation provisions protect any employee of a covered entity who provides to the employer, the federal government, or the Attorney General of a State information that the employee reasonably believes constitutes a violation of the FSMA; testifies or is about to testify about any such violation; assists or participates in any such proceeding; or objects to or refuses to participate in any activity that the employee reasonably believes is a violation of the FSMA.