Hunton Employment & Labor Perspectives

Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.

While there is overlap between the State and City requirements, there are differences that employers should note.

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act (“NLRA”).  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act (“FLSA”), at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that the National Labor Relations Act (“NLRA”) does not prohibit the use of arbitration agreements with class/collective action waivers covered by the Federal Arbitration Act (“FAA”).   The Sixth Circuit has now concluded in Gaffers v. Kelly Services, Inc.  that the Fair Labor Standards Act (“FLSA”), like the NLRA, does not bar the use of arbitration agreements with class/collective action waivers.

When negotiating a settlement agreement in an employment dispute, “no rehire” language is often a standard term.  This language typically bars the litigating employee from seeking re-employment with the former employer.  However, in California, at least one “no rehire” provision was invalidated because it was not narrowly tailored to the employer at issue.

In Golden v. California Emergency Physicians Medical Group (“CEP”), CEP terminated Dr. Golden’s employment, and he subsequently filed a lawsuit alleging racial discrimination.  The parties settled Dr. Golden’s claims, and CEP included a “no rehire” provision in the settlement agreement.  The provision states:

Hunton Andrews Kurth LLP is pleased to announce Ondray T. Harris, former director of the US Department of Labor’s Office of Federal Contract Compliance Programs, has joined the firm’s national labor and employment practice as special counsel in Washington.

At the OFCCP, Harris led the agency responsible for ensuring that federal government contractors and subcontractors achieve and maintain compliance with non-discrimination requirements. Previously, he led the Department of Labor’s initiative to assist private industries and states with creating apprenticeship programs and directed the operations of its Employment and Training Administration.

The National Labor Relations Board (“Board”) has taken the first step to potentially reshape labor law since the May 21, 2018 Epic Systems case, in which the Supreme Court held that class waivers in arbitration agreements do not violate the National Labor Relations Act (“Act”).

On August 15, 2018, the Board vacated its decision and order in Cordúa Restaurants, Inc., 366 NLRB No. 72 (April 26, 2018), where a three-member panel of the Board held that an employee engaged in concerted, protected activity by filing a class action wage lawsuit against his employer.

The Board’s recent vacating of this order is noteworthy for two reasons.

The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use.  Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.

The National Labor Relations Board issued a decision that serves as a reminder to employers of their bargaining obligations upon implementing changes to their business.  Rigid Pak Corp., 366 NLRB No. 137 (2018) involves a unionized company (“Rigid”) that manufactured and sold plastic products.  Rigid maintained an injection-molding division and a blow-molding division housed on different sides of its facility.  The injection-molding division manufactured open-head containers, lids, and crates while the blow-molding division manufactured plastic bottles.  In 2014, Rigid encountered various financial difficulties, and to address them, the company entered into a supply agreement to outsource its work to a third-party manufacturer.