Hunton Employment & Labor Perspectives

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.”  Houston Area Safety Council, Inc, v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”).  In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees.  Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”).  In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests. 

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S.  Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighting AI ...

On October 27, 2023, the National Labor Relations Board (“NLRB”) published its anticipated Final Rule modifying the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”).  See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).  The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer.   

On September 30, 2023, California Governor Gavin Newsom signed Senate Bill 553 creating new workplace violence prevention standards in California. The law consists of the first general industry workplace violence prevention requirement in the United States.  Under the law—specifically Labor Code Section 6401.9, this law amends California’s Code of Civil Procedure (“CCP”) to change the process by which employers may petition for temporary restraining orders (“TROs”) on behalf of employees.  CCP Section 527.8 previously allowed employers to petition for a ...

The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently signed a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies.  The MOU is the latest step by OSHA to blur the lines between workplace safety law and labor law, and could result in more workplace citations from OSHA or unfair labor practice charges filed with the NLRB.

In September 2023, OSHA announced a proposed rule that would allow an outside third party selected by employees to accompany an OSHA compliance safety ...