Hunton Employment & Labor Perspectives

HuntonAK’s Labor and Employment practice has been recognized as leaders by Chambers USA 2021 rankings. Chambers USA ranks leading firms and lawyers in an extensive range of practice areas throughout America. The research is in-depth, and client-focused and the guide is read by industry-leading companies and organizations throughout the US and worldwide.

In an April 28, 2021 decision, the Ninth Circuit determined that the application of California’s ABC test (also known as AB-5) to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (“F4A”). The ABC test is a judicially-created independent contractor test that was ultimately codified via AB-5. For a more in-depth discussion of AB 5, visit our previous blog post here.

In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana.  Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana.

Most employers know the Fair Labor Standards Act (“FLSA”) requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies.  But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week.  Payment on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.

On March 25, 2021, Virginia Governor Ralph Northam signed into law new protections for employees related to the medicinal use of cannabis oil.  Effective July 1, 2021, the newly enacted § 40.1-27.4 will prohibit employers from disciplining, discharging, or discriminating against an employee for his or her lawful use of cannabis oil so long as the use is pursuant to a valid written certification issued by a health care practitioner for the treatment of the employee’s diagnosed condition or disease.

HuntonAK Labor and Employment associate Reilly Moore was recognized as a Rising Star for Employment & Labor by The Washington Post Magazine and Virginia & West Virginia Super Lawyers Magazine, 2021.

Super Lawyers acknowledges outstanding practice group lawyers “who have attained a high-degree of peer recognition and professional achievement.”

Reilly is an Executive Committee Member for the Richmond Bar Association, Young Lawyers Section and serves as a Law School Council Liaison for the Virginia Bar Association.  During the past year, Reilly has served as a key member of the ...

Following the flood of employee-friendly legislation during the Virginia General Assembly’s 2020 session, which included a significantly strengthened wage payment law that we previously discussed, the 2021 session resulted in the passage of yet another new wage-related law that employers need to be aware of.  This new law – the “Virginia Overtime Wage Act” – goes into effect on July 1, 2021 and will usher in the first overtime pay requirement in Virginia’s history.

On April 16, 2021, Governor Newsom approved S.B. 93, a statewide COVID right-to-recall law that faltered on its first attempt last October.  In the interim, a number of counties and cities (including the Cities of Los Angeles, Oakland, San Francisco, San Diego, and Pasadena, and Los Angeles County) passed almost identical measures, which will remain in effect to the extent they are more generous than the state law.

Like the local ordinances, the state law is time-limited and directed to the industries with workforces most decimated by COVID: hotels, event centers, private clubs, airport hospitality operations, airport service providers and janitorial, maintenance and security services for commercial buildings. Through December 31, 2024, employers in those industries are required to notify those laid off because of COVID about newly-available positions, and offer them to the laid-off employees based on a qualification-based preference system. Post-layoff changes in ownership, the form of the organization, or the location of the business will not excuse an employer from these recall protocols, as long as the business conducts the same or substantially similar operations as it did before the pandemic.