Hunton Employment & Labor Perspectives

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) covering employment goes into effect on November 21, 2009.  GINA, which was enacted in May 2008, prohibits employers from discriminating on the basis of genetic information and from intentionally acquiring genetic information from employees or applicants.  The Act also imposes strict confidentiality requirements on employers, and requires them to segregate and maintain all such information in compliance with the Americans with Disabilities Act.

On November 5, 2009, the U.S. Senate Committee on Health, Education, Labor, and Pensions held an initial hearing on the Employment Non-Discrimination Act of 2009, S. 1584 (“ENDA” or “the Act”).  ENDA would prohibit discrimination in employment on the basis of sexual orientation and gender identity, which currently are not prohibited factors under federal law or under the laws of a majority of states.

In California, employers litigating claims for misappropriation of trade secrets must identify those trade secrets with “reasonable particularity” before pursuing discovery.  See Cal. Civ. Proc. Code § 2010.210.  There is frequently an early litigation battle over what "reasonable particularity" means.  Earlier this month, a California Appellate Court recently analyzed this principle in Perlan Therapeutics, Inc. v. Superior Court (Nexbio, Inc.).  The Court initially emphasized the trial court’s broad discretion under section 2019.210.  The Court also warned against the use of catch-all language in the identification statement to preserve the ability to add additional trade secrets to the list after the plaintiff has commenced discovery.

The Supreme Court agreed on November 2, 2009 to decide whether decisions of the National Labor Relations Board (NLRB) are valid if they were reached by only two members when other NLRB seats were vacant.  In New Process Steel, LP v. NLRB, the Seventh Circuit concluded that the NLRB’s two-member decision in that case was appropriate and binding.  The Supreme Court is expected to hold oral argument early next year and decide the case in June 2010. 

President Obama recently announced his intent to nominate P. David Lopez for the position of General Counsel of the Equal Employment Opportunity Commission (EEOC).  Lopez currently holds the position of Supervisory Trial Attorney for the EEOC’s Phoenix District Office.

H1N1 flu has become as widespread as feared.  For the period of August 30 to October 24, 2009, the Centers for Disease Control (CDC) reports 12,466 confirmed U.S. H1N1 hospitalizations and 530 confirmed deaths.  The CDC attributes 1339 deaths to H1N1 since the outbreak began in the Spring.  The Countries that are experiencing the worst outbreaks are the US, Mexico, and China.

This public health crisis is expected to get worse.  Any employer who has not yet put together a pandemic flu plan should do so immediately.  The details regarding such a plan are contained in the April 2009 "Swine Flu Pandemic Preparedness" and the May 2009 "H1N1 Update" Client Alerts.

These days, massive and often confusing legislative proposals seem to be the norm on Capitol Hill.  One bill that has generated significant debate -- and controversy -- is the House's current version of the health care bill, H.R. 3200.  Although it is vague in many respects, employers trying to predict the future can draw some conclusions now about what life under a government-run healthcare system might be like.

Employees who have family members serving in the armed forces will have new expanded rights under Section 565 of the recently-enacted National Defense Authorization Act for Fiscal Year 2010.  This provision further amends the Family and Medical Leave Act (FMLA), which was amended only a year ago to allow leave to care for family members with needs relating to military service.

In August 2009, the Obama administration named Patricia A. Shiu the new Director of the Office of Federal Contract Compliance Programs (OFCCP).  The OFCCP, part of the Department of Labor (DOL), enforces the non-discrimination and affirmative action obligations of federal contractors under Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act, and the Rehabilitation Act.

At the recent AFL-CIO Constitutional Convention, Secretary of Labor Hilda L. Solis declared that the Department of Labor (DOL) is “back in the enforcement business.”  The DOL chief vowed to increase the DOL’s workplace enforcement of the nation’s labor laws because vigorous enforcement “is not only our responsibility, it’s our moral obligation.”