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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Recent Executive Action Relies on Wage Transparency To Further Pay Equity Agenda

On April 8, 2014, in recognition of National Equal Pay Day, President Obama continued to advance his wage equality agenda by focusing on wage transparency through Executive Order on Non-Retaliation for Disclosure of Compensation Information (“Executive Order”) and a Presidential Memorandum entitled "Advancing Pay Equality Through Compensation Data Collection" (“Presidential Memorandum”).

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IRS Guidance Issued On The Effect of The Windsor Decision On Retirement Plans

Plan sponsors now have additional answers to some of their questions about the effect of the Windsor decision on retirement plans. Notice 2014-19, released on April 4, 2014, provides guidance concerning the application (including retroactive application) of Revenue Ruling 2013-17 and the June 26, 2013, Supreme Court decision that invalidated Section 3 of the Defense of Marriage Act (DOMA).

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Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces.  One of the Board’s most noteworthy – and controversial – areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.  Last week, for the first time, a U.S. Court of Appeals agreed with the Board that certain confidentiality restrictions can have such an effect.

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Banning the Criminal Background Check Box in San Francisco

On February 14, 2014, San Francisco passed the San Francisco Fair Chance Ordinance and became the latest national municipality to “ban the box” and limit the use of criminal background checks in employment hiring decisions.  The deadline for San Francisco employers to comply with the San Francisco Fair Chance Ordinance is August 13, 2014.  The “ban the box” campaign continues to gain momentum – San Francisco joins other cities (Buffalo, Newark, Philadelphia, and Seattle) and states (Hawaii, Massachusetts, Minnesota, and Rhode Island) who do not allow employers to ask about prior criminal convictions on initial job applications, and similar legislation is currently pending at state and local levels around the United States.  We present an overview of the San Francisco Fair Chance Ordinance and recommended best practices for compliance here.

EEOC and FTC Issue Joint Guidance on Background Checks

On March 10, 2014, the Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) issued joint guidance regarding the use of background checks.  The FTC, which enforces the Fair Credit Reporting Act, monitors compliance with how background checks are conducted.  The EEOC, which enforces federal laws against discrimination, seeks to ensure that the use of background checks does not disparately impact protected groups.

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NLRB Regional Director Rules That Football Players Are "Employees" Entitled To Unionize

On March 26, 2014, in a novel and potentially ground-breaking decision, National Labor Relations Board (“Board”) Region 13 Director Peter Sung Ohr ruled that Northwestern University football players who receive athletic scholarships are “employees” of the University and are entitled to unionize.  Ohr ordered a secret ballot election to be held for eligible players to vote on whether they want to be represented by the College Athletes Players Association, the Petitioner in this case, for collective bargaining purposes.

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Paid Sick Leave Law: Tough Medicine For Big Apple Employers

The national trend in increased workplace regulation continues on April 1, as New York City’s Earned Sick Time Act goes into effect. 

Although most large employers provide paid sick leave to employees, those employers in Gotham now don’t have a choice. The requirement applies to  any employer with at least five employees.

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General Counsel Advice Memorandum Outlines National Labor Relations Board Enforcement Priorities for 2014

On February 25, 2014, National Labor Relations Board (“NLRB” or “the Board”) General Counsel Richard F. Griffin issued Memorandum GC 14-01 to outline the agency’s enforcement priorities for the coming year.  The memorandum, which requires regional offices to submit matters of special interest to the Board’s Division of Advice for guidance on how to proceed, groups those priorities into three categories: (1) matters that involve General Counsel initiatives or areas of law and labor policy that are of particular concern to his office; (2) matters that involve difficult legal issues or areas of law in which governing precedent is unclear; and (3) an updated and expanded list of case-handling matters that have traditionally been submitted to the Division of Advice.

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DOL Postpones Anticipated Final Rule Related to "Persuader" Activity

In prior posts, we reported on the U.S. Department of Labor’s attempt to narrow the “advice exception” to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act.  Most recently, the DOL had indicated its intent to issue a final rule in March of 2014 that would narrow the well-known “advice exception” to the reporting requirement to require reporting of any consulting relationships where the consultant engages in actions or communications that would indirectly or directly persuade employees regarding organizing.  Since it was first proposed in 2011, the anticipated final rule has drawn criticism from employers and the attorneys who provide valuable legal advice to employers in the context of union organizing.  If adopted, the rule would have a significant impact on employers because they would no longer be able to avoid reporting third-party consulting arrangements by isolating consultants from direct employee interaction.  The rule could also interfere with an employer’s ability to obtain legal advice from their attorneys due to the concern that both the employer and the attorneys may incur reporting obligations as well. 

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President Expected To Increase The Number of Employees Eligible To Receive Overtime Compensation

President Barack Obama is expected today to direct the Department of Labor to revise its wage-payment regulations so that more workers will receive overtime compensation. 

Currently, the Fair Labor Standards Act provides an overtime exemption for categories of salaried employees who receive at least $455 a week.  President Obama intends to increase the weekly $455 salary threshold so that employers must pay affected employees a higher salary, cut their hours, or pay them overtime for work in excess of 40 hours a week.

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