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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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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Another Step In The Right Direction: W.D. Ark. Permits Certain Types of Private FLSA Settlements

As we previously reported, federal courts around the country have slowly begun to take a more flexible approach to evaluating the enforceability of private FLSA settlement agreements, calling into question the widely-held, decades-old view that settlements of FLSA claims are unenforceable unless they are approved by the DOL or a court.  Last month, the U.S. District Court for the Western District of Arkansas joined this slowly growing movement, holding that in individual FLSA lawsuits, court approval of the FLSA settlement agreement is not necessary if all parties are represented by counsel.

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ACA UPDATE: IRS Issues Final Forms And Instructions For Employer Coverage Reporting

The IRS recently issued final versions of the new Forms 1094-B, 1095-B, 1094-C and 1095-C, along with related final Instructions.  These forms are for reporting of coverage in 2014, but are expected to be similar for reporting for 2015.

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EEOC Rebuked by Fourth Circuit on Criminal Background Check Litigation

On February 20, 2015, a unanimous panel of the Fourth Circuit affirmed the exclusion of expert testimony by EEOC expert Kevin Murphy and the grant of summary judgment against the EEOC in its suit challenging Freeman’s use of credit and criminal background checks in the hiring process.  Although the Fourth Circuit’s decision expressed no opinion on the merits of the EEOC’s claim, the court found summary judgment was justified because the “sheer number of mistakes and omissions” in Murphy’s analysis rendered it unreliable.  While the court’s published opinion cited the “alarming number” of “mind-boggling errors” by Murphy, it was a concurring opinion by Judge Agee (which is actually longer than the unanimous decision of the court) that more thoroughly and severely criticized Murphy’s expert testimony and the EEOC’s “disappointing litigation conduct.”  According to Judge Agee, Murphy’s work was “riddled with fundamental errors, mistakes, and misrepresentations,” but even more disquieting was what appears to be a “pattern of suspect work from Murphy,” and the EEOC’s continued championing of Murphy “[d]espite [his] record of slipshod work, faulty analysis, and statistical sleight of hand.”  Judge Agee concluded:

The EEOC wields significant power…  The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress.  … The Commission’s conduct in this case suggests that its exercise of vigilance has been lacking.  It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.

Slip Op. at 21-23 (Agee, J., concurring)

Dodging Organized Labor's One-Two Punch: How to Avoid a Knockout in April

Please join Hunton & Williams LLP for a complimentary webinar on Thursday, March 12, 2015
2:00 pm ET – 3:30 pm ET

Program will cover the following:

  • NLRB’s “Quickie Election” rules that will go into effect in April 2015
  • The controversial “micro” bargaining unit rules that make it easier for a union to get its foot in the door
  • Practical things you can do NOW to foster a union free environment
  • Important steps to best posture your organization in the event of a union campaign

Hunton & Williams LLP will seek CLE credit for this program in CA, FL, GA, NC, NY, TX and VA. Credit hours are not guaranteed and are subject to each state’s approval rules.

Register

Supreme Court Case Foreshadows Texas Attorney General Attacks on Disparate Impact Analysis

The U.S. Supreme Court is considering a case that could have important implications to disparate impact analysis, including on criminal background checks.  The case also foreshadows further challenges from the Texas Attorney General to aggressive positions taken by federal enforcement agencies in regard to disparate impact.  The case is Texas Department of Housing & Community Affairs, et al., v. The Inclusive Communities Project, Inc., Case No. 13-1371, and is being argued by the Texas Attorney General.

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Hawaii Supreme Court Weighs In On Whether Criminal Conviction is Related to Radiological Technician Position

“Ban the Box” Laws

At least thirteen states, the District of Columbia, and almost 100 cities and counties have passed so-called “ban the box” laws, which restrict the scope of permissible investigations into job applicants’ criminal history, and, in some cases, the timing of such inquiries.

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San Francisco Passes "Retail Workers Bill of Rights"

The San Francisco Board of Supervisors recently enacted two ordinances – which are being called the “Retail Workers Bill of Rights” – that provide extensive new protections to employees of “formula retail establishments” in San Francisco.  The new ordinances regulate how covered employers manage their workers’ schedules and impose additional financial and administrative burdens on those employers.

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ACA UPDATE: New Proposed Rules And Template For Group Health Plan SBCs

In December 2014, the government issued new proposed rules regarding the requirements for providing a summary of benefits and coverage (SBC). Simultaneous with the proposed rules, the government also published an updated SBC template and uniform glossary.

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