Hunton Employment & Labor Perspectives

HuntonAK labor and employment lawyer, Amber Rogers, was recently selected by Texas Lawyer as a 2020 Diversity & Inclusion Champion honoree. The award recognizes lawyers who have either “overcome insurmountable odds to achieve success or… had an outsize influence on inclusivity initiatives.”

Amber has been recently recognized in the Dallas Business Journal’s Women in Business Awards, Profiles in Diversity Journal’s Women Worth Watching and D Magazine’s Best Lawyers Under 40.

The Texas Lawyer Diversity & Inclusion Champions were recognized in a virtual awards ...

The COVID-19 pandemic continues to cause uncertainty for employers across the country, but, as the National Labor Relations Board reiterated on September 18, it does not excuse labor law violations.

NLRB General Counsel Peter Robb issued General Counsel Memo 20-14 to summarize the types of COVID-related complaints that he has advised the agency to pursue since March 2020.  The theme is clear: in the vast majority of cases, the traditional rules of the National Labor Relations Act apply, even during a pandemic.

As Fall settles in and schools reopen, many employees with children (and their employers) are breathing a masked sigh of relief. Back to school means back to work, and back to work means increased productivity and greater job stability during a time when productivity and stability are needed.

California Governor Gavin Newsom recently signed legislation, AB 2257, that provides a carve out to the state’s independent contractor law. Under Assembly Bill 5, all independent contractors are presumed to be employees unless the hiring business can meet the stringent requirements (known as the ABC test) that are set forth in the California Supreme Court’s Dynamex decision. AB 5 also provided for certain exemptions for certain categories of workers. For a more in depth discussion of AB 5, visit our previous blog post here.

In-House Employment Counsel and Human Resources Executives may soon find themselves called on to provide input into their company’s SEC filings.  The SEC recently issued a new rule that requires a more comprehensive description of a public company’s human capital resources, if material, in the Company’s 10-K filing. These disclosures are likely to include statements about diversity and inclusion, compensation, hiring and other employment metrics that have traditionally been within the province of Employment Legal and Human Resources.

HuntonAK employment partner, Chris Pardo was recognized by Boston Business Journal as a 2020 “40 Under 40” honoree. This list recognizes professionals in the Boston area “who are making a difference in their businesses and communities.” With more than 400 nominations, the recognized individuals were selected based on their career accomplishments, their drive to succeed, and their commitment to serving the community at large.

Chris balances his practice with representation of Fortune 500 clients in the retail, energy, healthcare, hospitality and technology ...

On September 10, 2020, the United States District Court for the District of Massachusetts issued a Memorandum and Order granting summary judgment in favor of a franchisor in response to claims by a purported class of franchisees that they were not truly independent contractors, but employees of the franchisor.

The main issue addressed in the case was whether specific federal legal requirements that are imposed upon franchisors trump the general Massachusetts independent contractor classification statute. The federal court reasoned that applying the Massachusetts independent contractor classification statute to the franchise business model would render franchisors regulated by the Federal Trade Commission (“FTC”) criminally liable under state law for employee misclassification simply by virtue of their compliance with the FTC’s requirements.

California recently enacted Assembly Bill 1867, requiring all private employers with 500 or more employees to provide COVID-19 supplemental paid sick leave for their California employees.  Employers must begin providing supplemental sick leave, under the new law, no later than September 19, 2020.  The law will remain in effect until the later of December 31, 2020 or expiration of any federal extension of the Families First Coronavirus Response Act.

Earlier this month, the NLRB General Counsel released a guidance memo urging the Board to apply the “more than ministerial aid” standard when evaluating whether an employer’s assistance in union organizing violates the National Labor Relations Act.

An employer violates Section 8(a) of the NLRA when it provides impermissible support to a union attempting to organize unrepresented employees, and Section 8(b) when it provides impermissible support to employees seeking to decertify or withdraw from a union.  Under current Board precedent, what constitutes “impermissible behavior” under Section 8(a) and 8(b) is governed by two different standards.  When an employer is accused of impermissibly supporting a union’s organizing efforts there’s a “totality of the circumstances” standard.  And, when an employer is accused of impermissibly supporting a decertification petition there’s a “more than ministerial aid” standard.  The application of these different standards to similar employer behavior yielded inconsistent conclusions for what is “impermissible” employer involvement in union organizing. Therefore, the General Counsel now urges the Board to adopt the “more than ministerial aid” standard for both situations.

Artificial intelligence is changing the way companies interact with their employees. HuntonAK’s new Labor and Employment Emerging Technology Practice is focused on helping companies navigate artificial intelligence, process automation and technological advancements that are impacting employers across all industries.

Our team of Labor and Employment attorneys are well positioned to guide employers on the effects and influence of technology in areas of human resources, hiring, employee productivity, workplace safety and collective bargaining.

Hunton Andrews Kurth is excited to announce the launch of Employee Benefits Academy, a monthly webinar series that provides training on all facets of employee benefits, including qualified retirement plans, health and welfare arrangements, fringe benefits, and more.

Employee Benefits Academy is a supplement to our popular monthly Executive Compensation Webinar Series, which focuses on the multi-disciplinary subjects surrounding executive compensation.

Free continuing education in the forms of CLE (certain states), CPE (TX), HRCI and SHRM credits will be provided.

 Join us for our inaugural webinar:

HuntonAK employment partner, Susan Wiltsie was recognized by National Law Journal as a 2020 DC Trailblazer. The inaugural list of Washington DC Trailblazers is a special supplement created to spotlight professionals who have made significant impact on their practice.

Susan’s practice dedication to OSHA compliance, workplace safety and pandemic response, along with her commitment to clients earned her the ranking as a Washington DC Trailblazer.

Susan was listed along with Washington DC Firm partner Torsten Kracht.

Read “Trailblazers” feature in The National Law ...

While most EEOC enforcement actions are related to individual complaints of discrimination and/or retaliation, so-called “pattern or practice” matters are those in which the EEOC attempts to show that an employer has systematically engaged in discriminatory activities. The Equal Employment Opportunity states on its website, “Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” To combat systemic discrimination, section 707(a) of Title VII of the Civil Rights Act of 1964 authorizes the EEOC to sue employers engaged in a pattern or practice of discrimination.

In a pending NLRB case, an employees’ rights advocacy group, the National Right to Work Legal Defense Foundation (“NRTW”), filed an amicus brief supporting poultry plant workers seeking to decertify their union,  the United Food and Commercial Workers Union (“UFCW”), even though there was a collective bargaining agreement in place between the UFCW and their employer. The facts of the case are complex. But, the issue presented in the amicus brief and reply from the union is simple: should the NLRB abolish the decades-old contract bar rule that prohibits an election to oust a union with a collective bargaining agreement in effect?

HuntonAK employment Counsel, Sharon Goodwyn was honored by Virginia Center for Inclusive Communities Tidewater Chapter as a 2020 Humanitarian Award winner.

The Humanitarian Award is presented to those individuals who have demonstrated a personal commitment to the promotion of respect and understanding among people of diverse racial, ethnic, and religious backgrounds. VCIC presents the Humanitarian Award to individuals in each of chapter locations: Lynchburg, Peninsula, Richmond, and Tidewater. All honorees must reside and/or work in one of those areas of Virginia to be recognized.

Last week, the Department of Labor (“DOL”) provided clarity regarding issues of remote work and remote learning.

First, the DOL issued guidance regarding employers’ obligation to track the work hours of employees who are working remotely due to COVID-19 or due to an already existing telework or remote work arrangement.