Hunton Employment & Labor Perspectives

Last week, in American Express Co. v. Italian Colors Restaurant, the United States Supreme Court, in a 5-3 ruling, reversed the Second Circuit and held that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery.  In holding that a class action waiver in an arbitration agreement is enforceable, even as to federal anti-trust claims, this decision builds upon the trend set in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010), AT & T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) – that arbitration agreements should be enforced according to their terms even for claims under federal statutes.

The U.S. Supreme Court yesterday granted certiorari in two high profile labor cases, setting up what promises to be a compelling October 2013 term for labor practitioners.

NLRB v. Noel Canning: In a highly anticipated move, the Court granted the National Labor Relations Board’s request to review the U.S. Court of Appeals for the District of Columbia Circuit’s decision that President Obama’s January 2012 recess appointments to the Board were unconstitutional.  In January, the D.C. Circuit held the president may only make recess appointments during the intersession break between annual Senate sessions and that recess appointments may only be made to fill vacancies that happen during such breaks.  Since that decision, the Third Circuit also has ruled that the president may not make a recess appointment during intra-session Senate adjournments, but may only do so during intersession recesses.  The Supreme Court granted the Board’s request to review both prongs of the D.C. Circuit’s ruling.  It also requested that the parties brief the question of whether the president may make a recess appointment when the Senate is convening every three days in pro forma sessions.  President Obama’s January 2012 Board appointments were made the day after the Senate convened a pro forma session and then adjourned for three days.  Challenges to the President’s recess appointments have also been fully briefed and argued by Hunton & Williams lawyers in the Fourth and Seventh Circuits.  Regardless, the Supreme Court’s grant of certiorari in Noel Canning sets up a compelling separation of powers showdown between the Executive and the Senate regarding the scope of the Recess Appointment Clause.

A new case under the amended American with Disabilities Act (“ADA”) may add to employers’ confusion over how to handle medical and disability issues.   Butler v. Louisiana Dep’t of Pub. Safety & Corr., No. 3:12-cv-000420 (M.D. La. 2013).  In Butler, a state trooper alleged he was “regarded as” disabled by his employer, who allegedly thought he had obsessive compulsive disorder and germaphobia.  He claimed he was placed on involuntary leave, subjected to an excessive fitness-for-duty exam, and denied overtime opportunities.  The defendant employer denied the allegations and asserted the “direct threat” defense.  It sought discovery of the plaintiff’s psychiatric records and moved to compel production when the employee objected to the requests.  The court denied the motion to compel and made several interesting pronouncements.

In Weiss v. DHL Express, Inc., the First Circuit held that the employee was not entitled to a bonus based on the language of the company’s bonus plan and the bonus plan committee’s determination that the employee had been terminated for good cause.  The Court also held that the employee had no recourse under the Massachusetts Wage Act because his bonus did not qualify as wages under the Act.  Nos. 12-1853 and 12-1864 (1st Cir. June 3, 2013).

The Supreme Court has unanimously upheld an arbitrator’s ruling that a contract that required arbitration of “any dispute” constituted an agreement to class-wide arbitration. The Court’s narrow ruling turns on the parties’ express agreement to allow the arbitrator to decide whether their contract, which contained an arbitration provision but did not mention class proceedings, authorized class arbitration. However, the opinion has significant implications for companies desiring to avoid class arbitration—and class actions generally—through provisions ...

In an article to be published this month in the Seton Hall University Law Review, Hunton & Williams partners, Terry Connor and Kevin White have challenged the authority of the EEOC to publish its April 2012 Guidance.  That Guidance interprets Title VII to impose disparate impact liability on employers who consider the criminal background of applicants for employment as a criterion for selection.

On Friday, May 31, 2013, Hunton & Williams partner Michael Shebelskie argued on behalf of Big Ridge Inc. in Big Ridge Inc. v. NLRB, the lead case pending in the U.S. Court of Appeals for the Seventh Circuit in which an employer has challenged the constitutionality of President Obama’s January 4, 2012 recess appointments to the NLRB.  Mr. Shebelskie and Hunton & Williams also argued against the validity of the President’s recess appointments before the Fourth Circuit earlier this year in Huntington Ingalls Incorporated v. NLRB.  Argument in the Big Ridge case comes hot on the heels of ...

In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool.