Hunton Employment & Labor Perspectives

HuntonAK’s Labor and Employment practice has been recognized as nationwide leaders by Benchmark Litigation’s 2022 Labor and Employment guide.   HuntonAK’s Labor and Employment Team was recognized as a nationwide practice and in several individual jurisdictions.

Nineteen individual team lawyers were also acknowledged.

Since we last reported on the delay of the District of Columbia’s Ban on Non-Compete Agreements Act of 2020 (the “Act”), the D.C. Council passed the Non-Compete Clarification Amendment Act of 2022 (the “Amendment”), effective October 1, 2022, which significantly rolled back some of the more prohibitive features of the original 2020 version of the Act. 

On September 7, 2022, the NLRB released a Notice of Proposed Rulemaking (“NPRM”) and request for public comment regarding its latest iteration of the joint employer rule.  The NPRM proposes to rescind and replace the current final rule, entitled “Joint Employer Status Under the National Labor Relations Act,” which took effect on April 27, 2020.

On September 27, 2022, Governor Gavin Newsom signed Senate Bill 1162, which amends California Labor Code section 432.3, expanding employers’ pay disclosure and record keeping requirements in California.  

HuntonAK Labor and Employment partner Ryan Bates was named a member of the 2022 class of “Leader in the Law” by Virginia Lawyers Weekly.  Ryan is one of just 30 Virginia lawyers being honored for outstanding contributions to the practice of law.

The Fourth Circuit recently issued a significant decision, Williams v. Kincaid, which held that the Americans with Disabilities Act (ADA) protects individuals with gender dysphoria, becoming the first federal circuit in the country to do so.

Court watchers following the ripple effects of groundbreaking wage and hour opinion Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021) (“Swales”) may have gained their first insight into the Supreme Court’s thought process following Chief Justice John Robert’s refusal to pause a conditional collective action certification in Maximus Inc. v. Thomas, et al., No. 22A164, currently pending in the Eastern District of Virginia and following this decision and a failed appeal from the Fourth Circuit.

Editor’s Note: The California legislature failed to enact the proposed CCPA exemption amendments to Assembly Bill 1102.

On August 16, 2022, California Assembly Member Cooley introduced amendments to Assembly Bill 1102 that would extend the California Consumer Privacy Act’s (“CCPA’s”) temporary exemptions for HR and B2B data for an additional two years – until January 1, 2025. Under the CCPA, these exemptions are set to expire on January 1, 2023, when the amendments to the CCPA made by the California Privacy Rights Act (“CPRA”) become operative.

HuntonAK labor and employment partner Amber Rogers was honored by Corporate Counsel in the category of Thought Leadership in the publication’s list of 2022 Women, Influence & Power in Law Awards.

Yesterday, a California State Assembly Committee killed a bill that would have extended collective bargaining rights to a larger group of state employees – namely, legislative staffers. Existing state law excludes certain state employees from collective bargaining. The Legislature Employer-Employee Relations Act would “provide employees of the Legislature the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” If passed, the bill would extend collective bargaining rights to nearly 2,000 California legislative employees. California’s Public Employment and Retirement Committee rejected the bill in a 2-3 vote this Wednesday, due to unresolved “procedural, legal, and administrative problems,” according to the Committee Chair.

Earlier this week, the National Labor Relations Board (“Board” or “NLRB”) decided that employers cannot restrict employees from displaying union insignia (e.g., buttons, clothing, pins, and stickers) absent a showing of “special circumstances” in Tesla, Inc., 370 NLRB No. 131 (2022).  In connection with this ruling, the Board overruled Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), which analyzed the lawfulness of facially neutral work rules that regulated the size and appearance of such union insignia under a less exacting standard.  Employers with policies that address employee appearance, such as dress code or uniform policies, should review those policies for compliance purposes in light of Tesla.