On December 21, 2017, the U.S. District Court for the Eastern District of Pennsylvania in Moore v. Rite Aid Headquarters Corp., 2:13-cv-01515, dismissed a class action lawsuit alleging a violation of the pre-adverse action notice requirements in section 1681b(b)(3) of the Fair Credit Reporting Act (“FCRA”).  Moore is significant in the body of criminal background check precedent because it is a post-Spokeo ruling dismissing a pre-adverse action notice claim (as opposed to a 1681b(b)(2) Disclosure claim) on standing grounds after the parties participated in discovery and developed a factual record.

Continue Reading The Spokeo Chronicles: FCRA Criminal Background Pre-Adverse Action Claim Dismissed for Lack of Standing

On December 14, 2017, in a 3-2 decision along party lines, the National Labor Relations Board (the “Board”) issued a decision in The Boeing Company, 365 NLRB No. 154 (2017) case.  This is a significant and long-awaited victory for employers grappling with unfair labor practice charges stemming from facially neutral workplace rules and signals the Board’s intent to retreat from regulating non-union activity.  Specifically, Boeing  rescinds the onerous workplace rule standard in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) in favor of a new, more rational test.

Continue Reading NLRB Reverses Employee-Friendly Rule Regarding Facially Neutral Workplace Policies

On November 10, 2017, the New York Department of Labor released a set of proposed regulations affecting the Minimum Wage Order for Miscellaneous Industries and Occupations, which applies to most employers, except hotels and restaurants. The regulations propose the following call-in pay requirements for employers:

  • Reporting to work. An employee who, by request or permission of the employer, reports for work on any shift must be paid for at least four hours of call-in pay.
  • Unscheduled shift. An employee who, by request or permission of the employer, reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift must be paid an additional two hours of call-in pay.
  • Cancelled shift. An employee whose shift is cancelled within 72 hours of the scheduled start of such shift must be paid for at least four hours of call-in pay.
  • On-call. An employee who, by request or permission of the employer, is required to be available to report to work for any shift must be paid for at least four hours of call-in pay.
  • Call for schedule. An employee who, by request or permission of the employer, is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work must be paid for at least four hours of call-in pay.

Continue Reading New York Proposes Predictable Scheduling Regulations for Employees

[From Hunton’s Retail Blog]  If you are a retailer, you may have policies and procedures in place regarding who can speak on behalf of your company. Such policies may generally instruct employees not to speak to the press as a representative of the company, and to direct all media inquiries to a particular person or department. Similarly, if you are a retailer, you may have a policy in place that instructs employees to forward any reference requests to your human resources department. These commonplace policies allow retailers to control their public image and protect employee privacy, among other benefits. But, according to a recent decision by a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”), such policies may violate the National Labor Relations Act (“NLRA”) by interfering with, restraining or coercing employees in their right to engage in concerted activity.

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On March 27, 2017, President Trump signed H.J. Res. 37, blocking the Fair Pay and Safe Workplaces Rule, the controversial rule enacted by the Federal Acquisition Regulatory (FAR) Council in August 2016, that legislators have criticized as a method to blackball federal contractors. The bill’s signing follows the U.S. Senate’s March 6, 2017 vote of 49-48 (along party lines) to formally disapprove of the rule.

Continue Reading Trump Acts to Block the Fair Pay and Safe Workplaces Rules

On March 6, 2017, an NLRB administrative law judge (“ALJ”) issued a ruling finding that a nonunion automotive manufacturing facility in Alabama violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it terminated three employees who walked off the job over a holiday-season scheduling dispute. The ALJ found that the employees were engaged in protected concerted activity despite the fact that they denied discussing the decision to leave work before their shifts had ended.

Continue Reading Another Step in the NLRB’s Mission to Expand the Definition of “Concerted Activity” Under the NLRA

While the Trump Administration has not declared equal pay to be a key initiative, equal pay challenges for employers are not likely to go away. The Trump Administration has given no indication it will roll-back new EEO-1 reporting requirements, and the void in federal legislation will likely be filled by an increasing hodge-podge of state legislation. Hunton & Williams LLP labor and employment partners Bob Quackenboss and Emily Burkhardt Vicente discuss the challenges that companies will face, and what they can do to prepare.

View the 5-minute video here.

While the Trump Administration has not declared equal pay to be a key initiative, equal pay challenges for employers are not likely to go away. The Trump Administration has given no indication it will roll-back new EEO-1 reporting requirements, and the void in federal legislation will likely be filled by an increasing hodge-podge of state legislation. Hunton & Williams LLP labor and employment partners Bob Quackenboss and Emily Burkhardt Vicente discuss the challenges that companies will face, and what they can do to prepare.

View the 5-minute video here.

On January 22, 2017, the City of Los Angeles ‘banned the box’ when the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) (the “Initiative”) went into effect, prohibiting private employers in Los Angeles “from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment” is made to the individual. In doing so, Los Angeles becomes the fourth California city to ‘ban the box’ with greater protections than the state statute, and the second to do so with respect to private employers. If an employer makes a conditional offer of employment and then receives information about an applicant’s criminal history, the employer cannot take an adverse employment action against the applicant based on that history until (1) a written assessment has taken place and (2) a Fair Chance Process has occurred.

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With Christmas falling on a Sunday this year, employers should be mindful of state blue laws, which sometimes require premium pay to hourly employees working on Sundays or holidays. Although most state laws, as well as federal law, do not require premium pay for work performed on holidays (unless, of course, the employee has worked more than 40 hours that week), there are a few exceptions, such as Massachusetts and Rhode Island.

Continue Reading Blue Laws May Require Extra Pay for Non-Exempt Retail Employees During Holidays