Hunton Employment & Labor Perspectives

The EEOC is asking the Ninth Circuit to clarify the U.S. Supreme Court’s new standard for determining the type of harm that constitutes an adverse job action in discrimination cases and to apply that standard or remand the case at issue so the lower court can apply the new standard.

The U.S. Supreme Court’s landmark 2020 decision granting anti-discrimination protections for LGBTQ+ workers left room for future challenges by religious employers.

The Departments of Labor, Treasury and Health and Human Services (collectively, the Departments) recently issued new guidance in the form of FAQs to plan sponsors and administrators of group health plans to assist with them with preparations for the end of the COVID-19 National Emergency and the Public Health Emergency.[1] [2]

The New Year usually means new laws for California employers.  This year, a new privacy law goes into effect with new mandates for employers to ensure that workers have more control over the collection and use of their personal information.

Come January 1, 2023, companies that employ California residents need to make sure they have taken the required steps to comply with the California Privacy Rights Act (“CPRA”), which amends the landmark California Consumer Privacy Act (“CCPA”) by expanding its protections to employees, job applicants, and independent contractors.

The United States Supreme Court has agreed to take a closer look at the enforceability of arbitration agreements that bar representative claims brought under PAGA, a California law that allows individual employees to police labor code violations.

A California appellate court recently upended a representative PAGA and class action settlement because the named plaintiff did not exhaust administrative remedies under PAGA because he failed to identify each separate theory of liability.

California employers will need to reconsider the way they calculate premium payments for meal and rest break violations following a recent decision of the California Supreme Court.

While COVID-19 may have hit the business community like a hurricane, whether the pandemic, in fact, qualifies for a natural disaster exception under the federal law requiring businesses to warn employees of impending layoffs, remains an open question.

This February, a federal judge paved the way for the Eleventh Circuit to weigh in on whether a class action can proceed against an employer who was forced to lay off employees due to COVID-19.  That case, Benson v. Enter. Leasing Co. of Orlando, LLC, is one of the first to look at the application of pandemic-related layoffs to the Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN Act”). Underscoring the case’s importance to the business community, the U.S. Chamber of Commerce has just filed an amicus or “friend of the court” brief asking the Eleventh Circuit to take up the case and provide “much-needed guidance” to other courts across the country.

California employers now have some guidance from the state in implementing the new “Emergency COVID-19 Prevention Regulations” (“CA ETS”) that went into effect on November 30.

Employers were given no lead-time to comply with these stringent new rules by the California Occupational Safety and Health Standards Board (“Cal/OSHA”).  The CA ETS does contain obligations that employers already have in place, which are largely consistent with Centers for Disease Control and Prevention (“CDC”) guidance. But, as explained in an earlier update, the regulations also include significant onerous new obligations.  Faced with the threat of civil penalties, employers will now need to implement costly new prevention measures at a time when the pandemic is already putting a huge strain on the economy and businesses in particular. These new measures may ultimately put some employers out of business.

Beginning in January, an expanded California leave law will require employers with as few as five employees to provide up to 12 weeks of unpaid medical and family leave each year.  For larger employers also covered by the FMLA, the California leave may be in addition to the 12 weeks of leave that employers already must provide under federal law, for a potential total of up to six-months of leave.

The Ninth Circuit Court of Appeals has joined several sister circuits in holding that courts should consider the amount of “possible” and not “probable” punitive damages in determining the $5 million amount-in-controversy for federal jurisdiction in class action cases.

The case of Greene v. Harley-Davidson, Inc. presented a technical, but unresolved issue for the court – determining the proper burden when the defendant removes a case from state court based on Class Action Fairness Act (“CAFA”) jurisdiction and relies on punitive damages to establish the $5 million CAFA amount-in-controversy requirement.