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

On December 21, 2010, the NLRB issued a press release and fact sheet announcing its intention to publish in the Federal Register a proposed “rule” requiring virtually all private sector employers to post in the workplace a Notice to employees outlining their rights under the National Labor Relations Act. The proposed poster was published in the Federal Register on December 22, 2010.   Interested parties will have sixty (60) days from December 22nd to respond with comments regarding the proposed rule.

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The fiscal year 2010 was a record-setting year for the number of private-sector discrimination charges filed with the United States Equal Employment Opportunity Commission.  Nearly 100,000 charges were filed -- the most charges in the commission’s  45-year history.  This number represents an increase of just over seven percent from 2009, becoming the third consecutive year in which over 90,000 charges were filed.

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Recently, there has been a large amount of public commentary regarding the dangers of distracted driving, including texting while driving.  The Occupational Safety and Health Administration (OSHA), which regulates workplace safety, has now officially declared texting while driving to be a workplace hazard and an OSHA violation.  In its recent open letter to employers, OSHA explained that:

It is [the employer’s] responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.  Companies are in violation of [OSHA] if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.

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Yesterday, United States District Judge Henry E. Hudson (Eastern District of Virginia) found unconstitutional the Patient Protection and Affordable Care Act (PPACA) provision which requires most uninsured Americans to obtain coverage or pay a penalty.  Read Judge Hudson’s Memorandum Opinion.

Virginia Attorney General Kenneth T. Cuccinelli sued Health and Human Services Secretary Kathleen Sebelius, in her official capacity, alleging that the PPACA conflicts with Virginia law and that the Act’s purchase mandate is unconstitutional.  This lawsuit is similar to the lawsuit led by Florida Attorney General Bill McCollum in which twenty other states are participating in Florida.  A hearing on the States’ motion for summary judgment in that case is scheduled for December 16, 2010.

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It is not uncommon in discrimination and harassment suits for employers to battle against the admission of so called “me too” evidence.  Plaintiffs often employ the tactic of parading up other employees who claim they were discriminated against and/or harassed in the same manner as the plaintiff.  The results vary based on jurisdiction and fact pattern, and the standards can differ by jurisdiction and court.  The United States Supreme Court may soon add some clarity to this area.  The Court is considering whether to review a case involving the appeal of Billy Ray Tratree, an African-American employee who was discharged three months before he turned age 50 and was to become eligible for retirement benefits.  Tratree alleges that his employer discharged him on the basis of his race and age.  The Supreme Court soon will decide whether to review the Fifth Circuit’s opinion upholding the district court’s decision to exclude some of Tratree’s “me too” evidence.

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