Hunton Employment & Labor Perspectives

In another decision recognizing employers’ rights to issue reasonable prohibitions even if they have some slight impact of employees’ right to engage in concerted activity under the National Labor Relations Act, a beverage manufacturer’s rules banning cell phones in food production and warehouse working areas was recently upheld by the National Labor Relations Board.  Cott Beverages Inc., 369 NLRB No. 82 (2020).

On May 19, 2020, the US Department of Labor (“DOL”) issued its final rule likely expanding the FLSA’s Section 7(i) overtime exemption for commission-based workers in retail and service industries by withdrawing the long-standing, historical list of businesses that the DOL identified as falling within or outside of what it deemed to be a retail or service establishment.

As Texas begins to reopen, some employers are recalling employees placed on furloughs or leaves of absences due to the COVID-19 pandemic. As we previously reported, the Department of Labor recently issued guidance to clarify that an individual who is able and available to work, but refuses to take a job offer or return from a furlough, absent one of the COVID-19-related criteria, will not be eligible for the federal Pandemic Unemployment Assistance benefit under the CARES Act. On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance stating that, depending upon the reason for refusal, these employees may remain eligible for receipt of state unemployment benefits.

The new Democratic majority in the Virginia General Assembly wasted no time in passing numerous pieces of legislation that will change dramatically the landscape of Virginia labor and employment law and increase the employer’s compliance burden and litigation dockets. Please join us for an informative and interactive discussion of these changes. Our Labor and Employment team will discuss the new labor, discrimination, minimum wage, and employee misclassification statutes and detail what Virginia employers need to do now to prepare. Our Global Economic Development ...

Throughout the COVID-19 pandemic, the EEOC has periodically released updates to its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here and here. These questions and answers have provided employers with much needed guidance on the EEOC’s position on how employers can ensure the safety of their employees while at the same time not running afoul of the ADA.

The U.S. Department of Labor (“DOL”) issued supplemental CARES Act guidance  on May 8, 2020, that addresses the interplay between the Federal Pandemic Unemployment Compensation (FPUC) program and partial unemployment benefits at the state level.  The FPUC program is the portion of the CARES Act that enhances state unemployment insurance benefits by $600 each week a claimant is eligible for state benefits.  That program is in effect only between the week ending April 4, 2020 and the week ending July 31, 2020.

Los Angeles Mayor Gil Garcetti signed into law two new ordinances that affect certain employers in the following commercial sectors: airport businesses, commercial property businesses, event center businesses, and hotel businesses.  These ordinances give recall rights and impose obligations on employers upon a change in ownership.

City of LA’s first ordinance, known as the Right of Recall, requires covered employers to offer laid off workers new positions that become available.  The second ordinance, known as the Worker Retention Ordinance, requires covered employers of a business that has had a change in ownership to rehire workers who were employed by the prior business employer.

Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.

On May 6, a coalition of fourteen unions (the “Coalition”) urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections. The Coalition highlights COVID-19’s effect on the workforce in unemployment, underemployment, and dangerous working conditions, and submits that these effects highlight the need for union representation. Further, the Coalition asserts that the nature of COVID-19 makes in-person representation elections impractical, and, in conjunction with employer objections to elections by mail, it is exceedingly difficult for workers to form unions in the current climate.

A hotly contested ruling in a Fair Credit Reporting Act (“FCRA”) class action case will soon be appealed to the Supreme Court of the United States.  The Ninth Circuit in Ramirez v. TransUnion LLC, Case No. 17-17244, recently granted the parties’ Joint Motion to Stay the Mandate, seeking to stay the Ninth Circuit’s mandate pending TransUnion’s filing of a petition for writ of certiorari in the Supreme Court.  The Motion to Stay comes soon after the court denied TransUnion’s Petition for Rehearing or Rehearing En Banc regarding the Ninth Circuit’s decision in Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020).

Since 2014, OFCCP-covered employers have been required to invite job applicants, pre-offer, to disclose their disability status via a form prescribed by the OFCCP.  The information thus obtained helps employers analyze (1) the efficacy of their diversity recruiting efforts and (2) hiring rates of persons with disabilities.

This week, the Agency unveiled a modified format for that invitation. OFCCP hopes the revised form will increase the response rate for applicants and employees, who are often reluctant to disclose disabilities.  The form incorporates some changes requested by employers, and reduces the invitation to a single page.

The California Court of Appeals for the Second District evaluated the validity of unlimited vacation policies in a recent decision. Unlimited vacation policies operate how one might expect: instead of having a specific number of hours vest that the employee can use to take paid time off, an unlimited policy provides that the employee can take as much vacation per year as they would like to subject to company approval. In California, when vacation vests, it is treated as wages at termination and must be paid out. Since unlimited vacation does not vest, there is no payment due at termination.

Today the EEOC published a Notice in the Federal Register, announcing a delay in its collection of EEO-1 Component 1 data -- until March of 2021 -- due to the coronavirus pandemic.  (FR Doc. 2020-09876).  Component 1 data is what most employers associate with the EEO-1 Report: employment data summarized by job category, race/ethnicity, and gender.  There will now be no EEO-1 Reports submitted in 2020.

A recent Fifth Circuit opinion held that a company’s arbitration agreement did not prevent employees from pursuing their claims as a collective arbitration, rather than individual claims.  As class claims related to COVID-19 begin to surge, the opinion provides occasion for companies to review their arbitration agreements to ensure that the companies’ aims are clearly drafted.

 COVID-19

The harm COVID-19 has wrecked on workplaces is no secret.  As employees and employers grapple with remote work, pay reductions, and record unemployment, it is reasonable to expect a surge of employment litigation in the months ahead.

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

As states have worked to process the millions of unemployment claims arising out of the pandemic, many questions have arisen about who is eligible for the federal Pandemic Unemployment Assistance (PUA) benefit under the CARES Act.  The Department of Labor’s most recent guidance attempts to answer many of these questions posed by the states and may be helpful to employers considering furloughs or layoffs.

In recent weeks, the states have begun to announce strategies for reopening public life and business activities. Just as the shutdown orders took varying forms on a state-by-state basis, it appears the reopening orders will follow a similarly varied and state-by-state approach, creating new challenges for multi-state employers.  However, there are some trends starting to emerge that may help employers piece together a cohesive strategy for bringing their employees safely back to work.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.