Hunton Employment & Labor Perspectives

On September 15, 2022, the United States Department of Labor (“DOL”) announced an update to the Occupational Health and Safety Administration’s (“OSHA”) Severe Violator Enforcement Program (“SVEP”).

It is no secret that legislators and regulatory agencies have taken note of companies’ increasing reliance on artificial intelligence (“AI”).  In the employment context, vendors market AI as an efficiency tool that can streamline HR processes and guard against human bias and discrimination.  But as we have previously blogged, undisciplined use of AI may accelerate or introduce discrimination into the workplace.

Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”).  Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.

We previously posted about Washington, D.C.’s new law governing non-competes, which became effective on October 1, 2022.  D.C. employers, however, should be aware of a provision buried in the law that has nothing to do with non-competes and requires action by the end of this month.   

Last week, the National Labor Relations Board (“Board” or “NLRB”) decided that an employer no longer can unilaterally stop union dues deductions from employee pay pursuant to a dues-checkoff clause once a collective-bargaining agreement (“CBA”) expires absent a lawful impasse during negotiations for a successor agreement. Valley Hosp. Med. Ctr., Inc., 371 NLRB No. 160 (2022) (“Valley Hosp. II”). The decision marks another reversal of Board precedent in favor of unions by the Biden NLRB. (We discussed a prior reversal, which concerned employee appearance policies here.)

On September 18, 2022, California Governor Gavin Newsom signed into law Assembly Bill (“AB”) 2188, which prohibits employer discrimination based on employees’ use of cannabis off the job and away from the workplace.  While recreational use of cannabis, or marijuana, has been legal in California since 2016, the new law goes farther in specifically providing protections for employees who consume the substance.  AB 2188 makes California the most recent state to provide workplace protections for use of marijuana away from the workplace.  The bill will become effective beginning January 1, 2024.