Hunton Employment & Labor Perspectives

Employers failing to strictly comply with FCRA requirements in conducting background checks continue to face expensive consequences.  On November 16, 2018, the United States District Court for the Southern District of California approved a $1.2 million settlement of a class action lawsuit alleging violations of the FCRA filed against the popular pet supplies chain Petco.

The Department of Labor (“DOL”) recently published an Opinion Letter (FLSA-2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA-2009-23) and reversing its Obama-era position on the 20% tip credit rule.  This opinion letter marks another major shift in DOL’s policy and presents a welcome change for employers in the restaurant industry.

In the recent election, Californians voted to add an employer-friendly provision to the Labor Code that allows emergency ambulance workers to be on-call during breaks.  California is one of 24 states that allow voters to initiate laws through the petition process.

On October 29, 2018, the Internal Revenue Service, Department of Labor and Department of Health and Human Services (the “Departments”) jointly released proposed regulations in response to President Trump’s executive order calling for an expansion of the ability of employers to offer health reimbursement arrangements (“HRAs”) to their employees and to allow HRAs to be used in conjunction with nongroup coverage.

Voters in Michigan, Utah and Missouri passed marijuana-related ballot measures in the November 2018 elections.  Michigan, which legalized medical marijuana in 2008, became the tenth state to legalize recreational use of marijuana.  Utah voters agreed to institute a formal structured medical marijuana program, greatly expanding the scope of the state’s existing medical marijuana law, and Missouri voters for the first time authorized the state to create a system of licensed marijuana dispensaries for medical purposes. Each of these measures recognizes that marijuana remains a controlled substance, and illegal, under federal law, and that authorized users, growers, physicians, and any others who properly support or participate in these programs will be shielded from liability only under state law.

The U.S. District Court for the Northern District of California is a popular venue for class action lawsuits.  As of November 1, 2018, it is also the first to require parties settling such lawsuits to make broad public disclosures regarding the settlements.

The U.S. Supreme Court held yesterday that the Age Discrimination in Employment Act (ADEA) applies to state and local government employers, regardless of their size.  In doing so, the Court unanimously adopted the Ninth Circuit’s reading of the statute when four other Circuits held the opposing position.

In the wake of the #MeToo movement, many state legislatures have begun to take action to provide greater protections for victims of sexual harassment and make it easier for them to make complaints in the workplace.  For example, in California, AB 2770 amends Civil Code Section 47 to protect alleged victims of sexual harassment by a co-worker in making complaints to the employer without the fear of being found liable for defaming the alleged harasser.  It similarly protects employers when making statements to interested parties (such as the Department of Fair Employment and Housing and/or Equal Employment Opportunity Commission) concerning the complaints of sexual harassment.  In both instances, however, the statements and/or complaints are only protected from liability for defamation if they are made without malice and based upon credible evidence.

In a new class action filed recently against a hospital housekeeping company, employees allege their employer’s fingerprint scanning time-tracking system runs afoul of privacy laws.  The Pennsylvania-based company Xanitos Inc. now faces the lawsuit in federal court in Illinois, claiming the company violated the state’s Biometric Information Privacy Act (BIPA).

It’s now officially public: under the National Labor Relations Board’s (NLRB)  General Counsel Peter B. Robb, unions may face greater scrutiny and a higher burden in defending against claims that they violated the duty of fair representation.  Under the National Labor Relations Act, unions owe this duty to its members and can be liable under Section 8(b)(1)(A) if they represent them arbitrarily, discriminatorily, or in bad faith.