Wyatt Employment Law Report


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U.S. Supreme Court remands transgender bathroom case back to Fourth Circuit

By Courtney Samford

On March 6, 2017, the U.S. Supreme Court remanded a case involving a transgender high school student back to the Fourth Circuit Court of Appeals.  The case, Gloucester County School Board, Petitioner v.  G. G., By His Next Friend and Mother, Deirdre Grimm, focuses on the right of a transgender boy, Gavin Grimm, to use the bathroom that corresponds with his gender identity at his public high school.  Grimm, who was born a girl, used the boys’ restrooms with the approval of school administration until the Gloucester County School Board enacted a policy that required all students to use the bathroom that corresponded with their gender assigned at birth.

Grimm filed suit, alleging that the school board’s policy discriminated against him in violation of Title IX and the Equal Protection Clause.  The lower court dismissed Grimm’s Title IX claim.   Following an appeal, the Fourth Circuit reversed, finding that the lower court did not Continue reading


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United States Supreme Court to Resolve Class Action Waiver Issue

By Michelle D. Wyrick

In a matter of great interest to many employers, last week, the United States Supreme Court agreed to decide whether arbitration agreements that prohibit employees from pursuing class and collective remedies are enforceable. Courts are currently divided on the issue. The Supreme Court granted certiorari in three cases, Epic Sys. Corp. v. Lewis, from the Seventh Circuit, Ernst & Young LLP v. Morris, from the Ninth Circuit, and NLRB v. Murphy Oil, USA, from the Fifth Circuit, to resolve the question.

The dispute pits the savings clause of the Federal Arbitration Act (“FAA”), 9 U.S.C. §2, which allows invalidation of arbitration agreements only “upon such grounds as exist at law or in equity for the revocation of any contract” against employees’ rights to engage in protected, concerted activity under the National Labor Relations Act, 29 U.S.C. §157. The National Labor Relations Board (“NLRB”) takes the position that provisions in arbitration agreements requiring employees to waive their rights to pursue class or collective actions violate employees’ rights to engage in protected, concerted activity under the National Labor Relations Act (“NLRA”). In May 2016, the Seventh Circuit agreed and Continue reading


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21 States (Including Kentucky) and Several Businesses File Lawsuits Challenging DOL Final Rule Raising Salary for Exempt Workers

By Sharon L. Gold

money-roll-694667smallThis week, Kentucky, alongside 20 other states, sued the Department of Labor in a Texas Federal Court.  The states’ Complaint, 4:16-cv-00731, attacks the DOL’s Final Rule that raises the salary minimum for exempt workers.  That same day, numerous businesses and the Chamber of Commerce filed a similar Complaint, 4:16-cv-732, challenging the regulation.

The states contend that the Final Rule infringes upon state sovereignty and federalism by dictating the wages that a state must pay its employees.  The states contend that “as a result of the new overtime rules and the accompanying damage to state budgets, states will be forced to eliminate or alter employment relationships and cut or reduce services and programs.  Left unchecked, DOL’s salary basis test and compensation levels will wreck state budgets.”  States’ Complaint at 84.  As to Kentucky, the Complaint alleges that Continue reading


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Sixth Circuit Reversed in Union Benefits Health Case: Supreme Court Rules Against Retired Workers

By Amanda Warford Edge

On Monday, in M&G Polymers USA, LLC v. Tackett, No. 13-1010, the U.S. Supreme Court ruled that ambiguous provisions in union contracts should not be automatically interpreted in favor of a company’s retired workers. The case concerned a union contract from the 1990s that provided free health care benefits to the retirees of a chemical plant in Apple Grove, West Virginia who received pensions. In 2000, M&G bought the plant, and in 2006, it sought to make its retirees contribute to the health care costs. The retirees sued, alleging that they had been promised free benefits for life. The contract, of course, did not directly state whether the parties intended lifetime investiture.

Medical Records & StethoscopeThe district court found for M&G—but according to the Sixth Circuit, the retirees’ benefits had, in fact, vested for life. The Sixth Circuit relied on a long line of precedent, dating back to 1983, in support of this holding. Essentially, this precedent presumed the existence of lifetime benefits, even when the contracts at issue did not specify them. In Tackett, the Sixth Circuit expanded upon this presumption, holding that Continue reading


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Supreme Court Holds that Employer-Required Security Screenings Are Not Compensable Time in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ___ (2014).

On December 9, 2014, the Supreme Court unanimously held that warehouse employees were not entitled to be compensated for time spent at the end of their shifts in security screenings. The Court held that the post-shift screening activity was not compensable because it was not “integral and indispensable” to the principal activities the employees were hired to perform.

employee_staff_punch_clock_medThe employer, Integrity Staffing, provides warehouse  employee staffing to Amazon.com in various locations throughout the U.S. The Plaintiffs were hired to locate products in a warehouse and prepare them to be shipped. Id. at 1-2. Integrity Staffing required that its warehouse workers undergo security screenings at the end of their shifts to protect against employee theft. These screenings involved employees removing items like wallets, keys and belts, and passing through metal detectors. This process sometimes took up to 25 minutes. Id. at 2.

The Plaintiff/employees argued that they were entitled to be paid under the Fair Labor Standards Act (FLSA) for time spent waiting in line to undergo security screenings. They argued that the security screenings were solely for Continue reading


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HHS Issues Guidance Regarding Same-Sex Marriages and HIPAA

By Margaret Y. Levi

The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) has issued guidance concerning how the U.S. Supreme Court’s decision recognizing same-sex marriages may affect certain provisions relating to “family members” in the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule.

The HIPAA Privacy Rule recognizes that spouses, dependents and other family members often need access to information about patients in order to participate in their care as well as have privacy rights of their own regarding genetic information. The definition of family member under the HIPAA Privacy Rule includes the terms “spouse” and “marriage” but does not further define those terms.

In United States v. Windsor, the Supreme Court held as unconstitutional the section of the Defense of Marriage Act (“DOMA”) that excludes a same-sex partner from the definition of “spouse.” In light of the Windsor ruling, OCR advises health care providers and insurance companies (and business associates, as applicable) that the term “family member” in the HIPAA Privacy Rule will include same-sex spouses who are lawfully married, whether or not the state in which they live or get services recognizes same-sex marriages, as well as their dependents. OCR points out that this affects two standards under HIPAA:

  • Standard: Uses and disclosures for involvement in the individual’s care and notification purposes. Under certain circumstances, covered entities are permitted to share an individual’s protected health information with a family member of the individual. Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying this provision. See 45 C.F.R. § 164.510(b).
  • Standard: Use and disclosure of genetic information for underwriting purposes. This provision prohibits health plans, other than issuers of long-term care policies, from using or disclosing genetic information for underwriting purposes. For example, such plans may not use information regarding the genetic tests of a family member of the individual, or the manifestation of a disease or disorder in a family member of the individual, in making underwriting decisions about the individual. This includes the genetic tests of a same-sex spouse of the individual, or the manifestation of a disease or disorder in the same-sex spouse of the individual. See 45 C.F.R. § 164.502(a)(5)(i).

OCR has announced it will also issue additional guidance or regulations to address same-sex spouses as personal representatives under the HIPAA Privacy Rule.


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NLRB Ratifies Actions of Prior Board Found in Noel Canning to Lack a Quorum Due to Improper Recess Appointments

By Edwin S. Hopson

On August 4, 2014, the National Labor Relations Board announced that on July 18, 2014, it had “unanimously ratified all administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013.” This action was in response to the Supreme Court’s decision in NLRB v. Noel Canning holding that the Members recess-appointed on January 4, 2012 by President Obama were not validly appointed. The current Board was without question validly appointed on August 5, 2013, at which time a quorum was regained.

From January 4, 2012 to August 5, 2013, the NLRB took formal action on numerous matters including the appointment of some Regional Directors and Administrative Law Judges. In addition, there were agency restructurings of regional and headquarters offices. At the time these actions were taken, some parties appearing before the Board took exception to actions taken by some of these persons who they claimed were invalidly appointed. In an effort to eliminate those claims and challenges, the NLRB has taken this action.

In addition, the NLRB expressly authorized the following actions:

■ The selection of Dennis Walsh as Regional Director for Region 4 (Philadelphia);

■ The selection of Margaret Diaz as Regional Director for Region 12 (Tampa);

■ The selection of Mori Rubin as Regional Director for Region 31 (Los Angeles);

■ The selection of Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson as Administrative Law Judges;

■ The restructuring of various Field Offices;

■ The restructuring of Headquarters’ Offices.

On July 30, 2014, the NLRB announced that following the Board’s July 18, 2014 authorization, Regional Directors Walsh, Diaz, and Rubin ratified all actions taken by them or on their behalf from the dates of their initial appointments and July 18, 2014. These ratifications also included all personnel and administrative decisions, all actions in representation case matters, and all actions in unfair labor practice cases taken by these Regional Directors.

Whether this action by the Board and the several Regional Directors will be effective to eliminate pending challenges remains to be seen.

The July 18, 2014 Minute of Board Action can be viewed here.

http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3302/7-18-14.pdf