Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

As a recent decision by the U.S. Court of Appeals for the Fourth Circuit makes clear, the fact that an employer prevailed against an employee’s Sarbanes-Oxley claim in an administrative proceeding cannot be used to bar a new trial of the claim in federal court.  The U.S. District Court for the District of Maryland dismissed a former employee’s SOX lawsuit on the ground that it was precluded by an administrative law judge’s granting of the employer’s motion for summary decision.  The Court of Appeals, in a ruling of first impression, held that the lower court erred and vacated its dismissal in Stone v. Instrumentation Lab Co., 4th Cir., No. 08-1970, 12/31/09.

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Late last week the Bureau of Labor Statistics released its numbers concerning the levels of union membership in 2009. As in past years, the number of union members in the private sector has declined, now down to 7.2% from 7.6% in 2008. In December 2009, the NLRB's General Counsel released the Agency's numbers regarding the number of initial union representation elections in FY 2009. Once again, the number of elections initiated by unions has declined, this time by a whopping 19% in just one year.

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The EEOC reported that workplace discrimination charges reached near-record highs in 2009.  According to the EEOC, there were 93,277 charges filed in fiscal year 2009 -- the second-highest level in its history. 

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A recent decision from the California Supreme Court has provided a rare victory for companies with employees in that state.  In Schachter v. Citigroup, Inc., the Court ruled that a forfeiture provision in an employee incentive compensation plan did not violate California wage laws.

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The American Recovery and Reinvestment Act of 2009 (ARRA), which provides premium reductions for health benefits under COBRA, was recently amended by the Department of Defense Appropriations Act, 2010 (2010 DOD Act).  Under this new legislation, those involuntarily terminated through February 28, 2010, a change from the prior cut-off of December 31, 2009, are entitled to COBRA continuation assistance.  Furthermore, the legislation extended the length of that assistance to 15 months from 9 months.

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A recent decision of the U. S. District Court for the District of Columbia has cast doubt on the view that employees have no reasonable expectation of privacy in work email accounts.  Specifically, in Convertino v. United States Department of Justice,  Judge Royce C. Lamberth held that an employee’s communications with his attorney, sent to and received on the employee’s work email account, were protected from disclosure by the attorney-client privilege, even though the employer regularly accessed and saved such email communications.

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On December 24, 2009, the National Labor Relations Board ("NLRB") issued a revised version of its Case Handling Manual (Part One).  For those inside the NLRB, the Manual provides guidance on various internal policies and procedures for enforcement proceedings.  For those outside the NLRB, the Manual not only states how the agency is likely to deal with issues that arise during such proceedings, but also provides insight into the agency’s enforcement priorities.  Part One (the part recently revised) covers unfair labor practice (“ULP”) charges, but also includes sections that apply to representation elections and compliance proceedings as well.

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The Obama Administration recently proposed requirements to ensure that U.S. companies keep more extensive records of repetitive stress and other types of workplace injuries.  This is one of several signs that employers will face more regulation related to “ergonomics,” or the design and functioning of work spaces, equipment, and tasks in such a manner as to avoid such injuries.

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The drama in late 2008 surrounding the factory shutdown of Republic Window & Doors in Chicago, Illinois, highlighted for banks and other financial institutions the potential backlash when a debtor business fails.  In that situation, the factory's lender faced a public relations challenge when it declined (with good reason) to continue a line of credit for a failing company.  The company said it could not continue because its lender was not willing to continue funding its operations, and its employees staged a sit in to protest the bank's action.  Illinois Governor (at that time) Rod Blagojevich even threatened to discontinue all state business with the bank.

In addition to public relations risks in such situations, banks and other financial institutions face significant risk if they take steps to intervene in debtors' businesses.  A recent article published by the Georgia Bankers Association highlighted this threat.  As noted in the article, when a financial institution takes aggressive action by getting involved in the management of a debtor's business, it may find itself in the shoes of the debtor for purposes of employment law.

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