Hunton Profile

Administrative Law Task Force

The Administrative Task Force plays a critical role in keeping our OSHA practice current and vibrant.  We follow developments daily and we work together to analyze the impact that proposed and actual changes will have on the law in general and specifically on our client’s industries. Employers today face an unprecedented range of workplace safety and OSHA legal issues as government increases worker safety and health regulation and demands meticulous reviews by its OSHA inspection force.

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Virginia Becomes the Next State to "Ban the Box"

On April 3, 2015, Virginia Governor Terry McAuliffe signed an Executive Order that “bans the box” and prohibits Virginia agencies, boards, and commissions from asking questions about an applicant’s criminal history on employment applications.

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Health Care Reform - Updated Employer Compliance Timeline and Checklist

The government has continued to issue a number of regulations and other guidance on the Patient Protection and Affordable Care Act (PPACA) and related health care laws, including the following:

  • Final regulations on the use of “bona fide orientation periods” in coordination with waiting periods for health care coverage;
  • IRS forms and instructions regarding reporting of health care coverage by health plans and large employers;
  • Updated proposed rules on the required Summary of Benefits and Coverage;
  • Guidance regarding use of “skinny plans”; and
  • Preliminary guidance on the “Cadillac” tax on high-cost health plans.

We have developed a compliance reference tool to assist employers in developing a better understanding of what is required under PPACA and the required timeframe for any applicable changes. This tool contains a timeline/checklist, along with an appendix providing additional information on many of the requirements (which are linked to the timeline/checklist for easy access). See the most recent version, which has been updated as of the beginning of April 2015.

SEC Brings First Enforcement Action Warning Employers Against Imposing Confidentiality Terms That Could Deter Whistleblowers

On April 1, 2015, the US Securities and Exchange Commission brought its first enforcement action against a company for asking employees to agree to confidentiality terms during internal investigations.

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The United States Supreme Court's Decision in Perez v. Mortgage Bankers Association and its Potential Impacts on Federal Agencies' Rulemaking Authority

Federal agencies need not go through the formal and drawn-out “notice-and-comment” process when altering an interpretation of a regulation.  In a unanimous decision, the Supreme Court in Perez v. Mortgage Bankers Association stated that the Administrative Procedure Act (the “APA”) does not mandate notice-and-comment rulemaking for interpretive rules.  In doing so, the Supreme Court overturned the doctrine established by the D.C. Circuit’s 1997 decision, Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), which had held that an agency must use the APA’s notice-and-comment procedures prior to issuing a new interpretation of a regulation that deviates significantly from a definitive interpretation the agency had previously adopted.  In Perez, the Supreme Court addressed the question of whether the Paralyzed Veterans doctrine was consistent with the APA, ultimately finding that it was not. 

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Countdown to an Ambush

If your company did NOT attend our recent webinar concerning the new Ambush Union Election rules, then please READ ON:

Conflicting Provisions in Arbitration Agreement Puts Employer Back in Court Litigating Representative and Class Claims

A California appellate court recently invalidated an arbitration agreement that an employee had voluntarily entered into on the basis that it contained an unenforceable waiver of the employee’s claims under the California Private Attorneys General Act (“PAGA”) and, under the parties’ agreement, that provision could not be severed.

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Five Reasons Why Businesses Should Take Steps Now To Make Their Websites Accessible

The DOJ announced last November that it again was delaying the target date for publishing its proposed website regulations for state and local governments to December 2014, and its proposed website regulations for public accommodations until June 2015.  Next, without further comment, the DOJ failed to make its December 2014 deadline for its state and local government regulations.  Given that the state and local government regulations deadline was missed, and that the DOJ has not yet submitted its public accommodations regulations to the federal Office of Management and Budget for required review and approval, it is virtually certain that the June 2015 deadline for public accommodations regulations will be missed as well.  Bottom line – affected businesses won’t see the DOJ’s new website accessibility regulations anytime soon.

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Too Much Too Soon: S.D.N.Y. Considers Plan to Distribute Collective Action Notice Through Social Media And Says No

In Mark v. Gawker Media LLC (“Gawker”), S.D.N.Y. Case No. 13-cv-4347, the Court permitted Plaintiff’s counsel to submit a plan to distribute class notice through social media.  Plaintiff put forward a plan to use five websites to not only distribute notice, but also to potentially locate additional collective action members.  The Southern District of New York rejected this proposal, even after the parties had agreed to certain aspects of it, finding “[t]he proposals [were] substantially overbroad for the purposes of providing notice to potential opt-in Plaintiffs, and [that] much of Plaintiff’s plan appear[ed] calculated to punish Defendants rather than provide notice of opt-in rights.”

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ACA Update: Government Issues Preliminary Cadillac Tax Guidance

The IRS recently issued Notice 2015-16 addressing the excise tax on high cost employer-sponsored health coverage enacted under the Affordable Care Act. This tax, which is commonly referred to as the "Cadillac" tax, will take effect in 2018. While it does not provide definitive guidance on which employers can rely, the Notice does provide some useful insights as to the agency's intended approach regarding key aspects of the tax.

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New NLRB Deferral Standard Signals Changes For Employers

Often times, the same set of underlying facts will give rise to both a contractual dispute between an employer and a union and an unfair labor practice charge. In these instances, an arbitrator usually decides the contract dispute, while it is the National Labor Relations Board's responsibility to determine the merit of the alleged unfair labor practice. Historically, however, the Board has commonly declined to hear unfair labor practice charges related to contractual disputes, and has instead deferred to arbitrators' earlier contractual rulings. Until recently, the burden fell on the party seeking to avoid Board deferral (usually the union) to prove that deferral was inappropriate. Practically, this ensured that employers could easily avoid addressing the same issues or facts in essentially duplicative litigation.

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