Hunton Employment & Labor Perspectives

Originally published by SHRM, Jayde Brown and Amber Rogers discuss challenges employers may face when vacation scheduling conflicts arise once employees return to work.  Read more here.

In a 6-3 decision, the U.S. Supreme Court ruled today that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an employee’s sexual orientation and/or transgendered status.  Though Title VII does not expressly mention “sexual orientation” or “transgender,” the Court held that “homosexuality and transgender status are inextricably bound up with sex” and that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”—a protected class under Title VII.

As we have previously reported here, here, and here, Virginia has enacted several new labor and employment laws that are poised to dramatically change the legal landscape for employers in Virginia.  In addition to the laws discussed above, Virginia has also enacted “ban the box” legislation for simple possession of marijuana.

In another decision recognizing employers’ rights to issue reasonable prohibitions even if they have some slight impact of employees’ right to engage in concerted activity under the National Labor Relations Act, a beverage manufacturer’s rules banning cell phones in food production and warehouse working areas was recently upheld by the National Labor Relations Board.  Cott Beverages Inc., 369 NLRB No. 82 (2020).

On May 19, 2020, the US Department of Labor (“DOL”) issued its final rule likely expanding the FLSA’s Section 7(i) overtime exemption for commission-based workers in retail and service industries by withdrawing the long-standing, historical list of businesses that the DOL identified as falling within or outside of what it deemed to be a retail or service establishment.

As Texas begins to reopen, some employers are recalling employees placed on furloughs or leaves of absences due to the COVID-19 pandemic. As we previously reported, the Department of Labor recently issued guidance to clarify that an individual who is able and available to work, but refuses to take a job offer or return from a furlough, absent one of the COVID-19-related criteria, will not be eligible for the federal Pandemic Unemployment Assistance benefit under the CARES Act. On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance stating that, depending upon the reason for refusal, these employees may remain eligible for receipt of state unemployment benefits.

The new Democratic majority in the Virginia General Assembly wasted no time in passing numerous pieces of legislation that will change dramatically the landscape of Virginia labor and employment law and increase the employer’s compliance burden and litigation dockets. Please join us for an informative and interactive discussion of these changes. Our Labor and Employment team will discuss the new labor, discrimination, minimum wage, and employee misclassification statutes and detail what Virginia employers need to do now to prepare. Our Global Economic Development ...

Throughout the COVID-19 pandemic, the EEOC has periodically released updates to its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here and here. These questions and answers have provided employers with much needed guidance on the EEOC’s position on how employers can ensure the safety of their employees while at the same time not running afoul of the ADA.

The U.S. Department of Labor (“DOL”) issued supplemental CARES Act guidance  on May 8, 2020, that addresses the interplay between the Federal Pandemic Unemployment Compensation (FPUC) program and partial unemployment benefits at the state level.  The FPUC program is the portion of the CARES Act that enhances state unemployment insurance benefits by $600 each week a claimant is eligible for state benefits.  That program is in effect only between the week ending April 4, 2020 and the week ending July 31, 2020.

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

In recent weeks, the states have begun to announce strategies for reopening public life and business activities. Just as the shutdown orders took varying forms on a state-by-state basis, it appears the reopening orders will follow a similarly varied and state-by-state approach, creating new challenges for multi-state employers.  However, there are some trends starting to emerge that may help employers piece together a cohesive strategy for bringing their employees safely back to work.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.

On April 23, 2020, the EEOC updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here, to address questions that many employers are struggling with related to employee COVID-19 testing.  The EEOC’s new guidance confirms that employers are authorized to administer COVID-19 tests before allowing employees to enter the workplace, and that doing so does not violate the Americans with Disabilities Act (ADA).

On April 17, 2020 the EEOC updated its’ Technical Assistance Questions and Answers to provide employers with additional guidance interpreting the ADA, Rehabilitation Act, and other EEO Laws in the midst of the COVID-19 pandemic.  The EEOC first reminds employers that while these laws continue to apply, employers should still adhere to the ever-changing guidelines and suggestions made by the CDC or state/local health authorities.  With that in mind, the new guidance addresses several topics, summarized below.

The Seventh Circuit recently held that district courts should not send court-authorized notice of pending FLSA collective actions to employees who are party to a mandatory arbitration agreement.

In Bigger v. Facebook, Inc., the plaintiff-employee brought an FLSA collective action, alleging that she and a group of “similarly situated” employees were misclassified as exempt employees.  When the plaintiff-employee moved to conditionally certify the FLSA collective action and to send court-authorized notice of the action, the defendant-employer argued that notice was improper and inefficient because most putative members were bound by mandatory arbitration agreements that prohibited their participation in the case.  Despite being presented with a copy of the arbitration agreement, the district court granted conditional certification and ordered the parties to issue notice to all putative collective members, including those that had signed arbitration agreements.  The Seventh Circuit granted an interlocutory appeal.

As detailed in our previous alert, Texas Governor Greg Abbott recently committed to begin the gradual process of reopening businesses in Texas. On April 17, 2020, Governor Abbott issued two Executive Orders that relate to the strategic reopening of select services as the first step to open Texas in response to the COVID-19 pandemic.

Impact on Retail Employers

Executive Order GA 16 (“E.O. GA-16”) allows businesses that provide retail services that are not “essential services" to reopen, albeit with restrictions. Specifically, E.O. GA-16 establishes a “retail to-go” model that will allow such  businesses to reopen starting April 24, 2020, provided the reopened establishments deliver the items to customer’s vehicle, home or other location. Notably, Texas employers who reopen operations to provide retail to-go services are required to be in strict compliance with the terms required by the Texas Department of State Health Services (DSHS).

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which requires California employers in the food sector industry to provide certain workers affected by the COVID-19 pandemic with up to 80 hours of supplemental paid sick leave.

Los Angeles (LA) Mayor Eric Garcetti has issued an emergency order modifying the City’s recently passed COVID-19 supplemental paid sick leave requirements.  The prior ordinance, adopted on March 27, 2020, by the LA City Council, had required LA employers with 500 + employees nationally, to provide up to 80 hours of supplemental paid sick leave.  In a nod to the instrumental role employers will play in the City’s revival in the aftermath of the coronavirus crisis, Mayor Garcetti modified the paid leave requirements in a number of key ways.

On April 10, the Department of Labor published corrections to its regulation on the Families First Coronavirus Response Act and fixed an internal inconsistency regarding concurrent use of employer-provided paid time off and paid expanded family medical leave under the Act.

We previously covered the initial DOL rule on Families First here.  The Families First Act provides up to 12 weeks of paid leave for employees of small to mid-sized businesses for certain coronavirus-related reasons.

On Saturday, April 11, 2020, Virginia Governor Ralph Northam officially signed the Virginia Values Act into law.  The bill’s headlining purpose—adding gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA)—is commendable and has garnered widespread support.  However, other, more technical changes in the bill that are unrelated to the headlining purpose are poised to change the landscape of employment litigation in Virginia and could lead to a significant increase in discrimination lawsuits filed in Virginia’s state courts.  Virginia employers are well served to begin preparing now for this new procedure in the handling of employment discrimination charges and litigation, as the bill’s new provisions go into effect on July 1^st.

EEOC guidance on COVID-19 continues to evolve as the medical community learns more about the virus.  On April 9, 2020, the EEOC expanded the list of symptoms about which employers may ask when screening employees entering the workplace, without running afoul of the Americans with Disabilities Act (ADA).  Previously, employers were permitted to ask individuals if they were experiencing fever, chills, cough, sore throat, or shortness of breath. In the agency’s most recent update to its “Technical Assistance Questions and Answers about COVID-19,” it acknowledged that the medical profession now recognizes that the virus may present with the additional symptoms of a sudden loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea or vomiting.  Inquiries about these symptoms are now permitted, as well.

Almost overnight, COVID-19 has radically altered the American workplace.  Employers and employees alike have been forced to adapt to unique issues related to employee health, compensation, leave, and in unfortunate circumstances, furlough or lay-off.

Such change may be accompanied by grievances, concerns, and fears.  And in some instances, employees will desire to communicate those anxieties to the greater public at large.  Naturally, employers will want to have some degree of control over this messaging, while preserving the rights of employees to express themselves individually or collectively.  These principles are sometimes difficult to reconcile.  But a recent NLRB decision, Karen Jo Young v. Maine Coast Regional Health Facilities, issued on March 30, illuminates some fundamental principles that can help employers manage this balance during these difficult circumstances.

Factual Summary

On Wednesday, the CDC issued interim guidance for implementing safety practices for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19.  We’ve summarized the highlights below:

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law. One aspect of the CARES Act, the Paycheck Protection Program (PPP), permits certain employers to obtain forgivable loans in order to keep employees on the job and to pay overhead costs.

Below are 10 facts small business owners should know about the PPP, which is administered by the Small Business Administration’s (SBA) 7(a) Loan Program.

The Department of Labor issued its Final Rule regarding implementation of the Families First Coronavirus Response Act on April 1, but it does not resolve all outstanding questions for employers.

The Final Rule provides points of clarity on issues such as the definitions of health care provider and emergency responders, the small business exemption to the Act, and the effect of state or local stay-at-home orders on an employee’s right to take leave.  But it also contains some apparent internal inconsistencies, including whether employers can require employees to use employer-provided paid time off and partially paid Emergency Family and Medical Leave Expansion Act leave (“Emergency Family Medical Leave”) concurrently.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law on March 27, 2020 as a federal response to the economic crisis caused by the Coronavirus. As we previously reported, the Act greatly expands unemployment benefits for workers affected by the COVID-19 pandemic, but many questions remained about how the Act would be applied.  The DOL recently issued guidance answering some of these questions.

The California Public Health Department issued Guidance recommending that all Californians wear cloth face coverings when in public for essential activities.  San Diego County took that guidance one step further, however, and issued an addendum to its public health order, requiring that certain employees wear cloth face coverings.  The San Diego order also requires covered businesses to follow new posting guidelines, and recommends that all San Diegans heed California’s Statewide Face Coverings Guidance.

In the face of unprecedented challenges due to COVID-19, employers have been forced to balance the need to mitigate current health risks against the need to protect their future financial viability.  Last week, the Los Angeles City Council made navigating that balance more difficult for some employers.

The Ninth Circuit recently overturned a district court’s grant of class certification on a wage statement claim under California Labor Code §226 because there were no “real-world consequences” stemming from the alleged misidentification of the employer’s name on the wage statement. Lerna Mays, a former Wal-Mart employee, brought a putative wage and hour class action alleging various claims, including a claim that Wal-Mart violated Section 226 because her employer was Wal-Mart Stores, Inc., but her pay stubs listed “Wal-Mart Associates, Inc.” The district court granted certification of plaintiff’s wage statement claim, and Wal-Mart appealed.

As detailed in our previous alert on this issue, on August 1, 2019, Dallas joined a host of states, cities and counties across the country when it implemented the City of Dallas’s Paid Sick Leave Ordinance No. 31181 (the “Ordinance”). Under the Ordinance, employers were required to provide paid sick leave to all full-time and part-time employees. While legal challenges effectively stopped the enactment of other cities’ ordinances, the Dallas Sick Leave Ordinance remained unchallenged – until recently, that is.

On March 27, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES”), an unprecedented $2 trillion economic rescue plan in response to the COVID-19 pandemic.  Our firm has previously summarized the CARES Act’s tax and health and retirement benefits provisions here and here.  Below, we summarize additional aspects of the Act that impact the workplace.  It is important to note that there are a number of open questions presented by this legislation, which could impact employers’ structure for layoffs, furloughs, and pay reductions.  We anticipate the various governmental agencies charged with implementing the CARES Act will be issuing guidance soon, and we will provide updates as appropriate.

The Families First Coronavirus Response Act (the “Act”) is set to take effect on April 1, 2020.  As we previously reported, the Act requires that employers with fewer than 500 employees provide two new forms of paid leave.  First, covered employers must provide up to 80 hours of emergency paid sick leave to employees who are unable to work because of certain COVID-19 related reasons.  Second, covered employers must provide up to 10 weeks of paid FMLA leave (in addition to the 80 hours of emergency paid sick leave) to eligible employees who are unable to work or telework because they need to care for a child whose school or daycare is closed due to the COVID-19 pandemic.

The Department of Labor released posters that employers with fewer than 500 employees must use to meet the notice posting requirements of the Families First Coronavirus Response Act.

The DOL issued two posters, one for federal employers, available here and one for all other covered employers, available here.  The DOL also provided a questions and answers page regarding the notice posting requirement here.

As reported on the Hunton Andrews Kurth Business Immigration Insights blog, as employers throughout the United States increasingly move to remote work arrangements for employees, they are confronted with challenges in completing Form I-9.  An employer must inspect an e employee’s original identity and employment authorization documents in the physical presence of the employee within 3 business days after employment begins.  For remote hires, and for reverification of current employees working remotely, government agencies have relaxed some I-9 requirements ...

Employers in California continue to grapple with how to interpret Governor Gavin Newsom’s Executive Order directing all California residents to stay home, except as needed “to maintain the continuity of operations of the federal government critical infrastructure sectors.”  Since the Order came out, the state has issued and updated its list of “Essential Critical Infrastructure Workers” who are exempted from the stay-at-home restrictions for purposes of reporting to work.

As reported on the Hunton Andrews Kurth Business Immigration Insights blog, Employers nationwide are implementing work reductions, closures and furloughs in order to reduce costs during the COVID-19 economic slowdown in the United States.  When employees are put on reduced hours or furloughed, employers face changing legal obligations in multiple areas of labor and employment law.  Companies that employ nonimmigrant workers should not overlook the additional legal obligations they have toward these employees, especially those who are on visas that have prevailing wage ...

For the first time in the Ninth Circuit, the Court of Appeals addressed the issue of whether every class member in a class action lawsuit needs “standing” to recover damages at the final judgment stage, and found in the affirmative.  In Ramirez v. TransUnion LLC, No. 17-17244, 2020 WL 946973 (9th Cir. Feb. 27, 2020), a class of 8,185 consumers brought a class action against the credit reporting agency TransUnion LLC (“TransUnion”) pursuant to the Fair Credit Reporting Act (“FCRA”), alleging that TransUnion, knowing that its practice was unlawful, incorrectly placed terrorist alerts on the front page of consumers’ credit reports and later sent the consumers misleading and incomplete disclosures about the alerts and how to remove them.

Unemployment insurance is a joint federal-state program, administered separately by each state following guidelines established by federal law. On March 12, 2020, the Department of Labor (“DOL”) issued advisory guidance for state workforce agencies, suggesting ways in which the states might relax program requirements and expand benefit eligibility in light of the COVID-19 pandemic.

COVID-19 presents an array of new challenges and an abundance of uncertainty for employers. Notable among them, is the possibility that communities and states will begin to issue mandatory business closures and shelter in place orders. Interpreting and complying with these orders raises a host of issues for employers to consider.

The CDC has recommended temperature checks for workers in some counties.  Governors are beginning to make the same recommendation.  This step already is in place for many healthcare workers.  Now, employers in other industries are considering whether they should conduct temperature checks on employees who are reporting to work and send them home to avoid possible spread of the virus on the employer’s premises.

In response to the COVID-19 pandemic, New York state enacted a temporary emergency paid sick leave law for workers subject to a “mandatory or precautionary order of quarantine or isolation”.

In a press conference today, Governor Cuomo announced his plan to mandate 100% of non-essential workforce in New York stay home.  What does this mean for New York businesses?

In response to the COVID-19 pandemic and in an effort to prevent the spread of the virus, many employers are grappling with the need to immediately shut down operations.  This raises the question whether employers must pay out all wages (including paid time off) when employees are temporarily laid off or furloughed. In California, they might.

As reported on the Business Immigration Insights blog, employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for green cards through labor certification (“PERM”).

Read more here.

The United States Senate today passed the Families First Coronavirus Response Act and sent it to President Trump’s desk.  The President is expected to sign the bill into law this week.

The bill, which provides for paid sick leave and expanded family leave for certain employees for coronavirus-related reasons, passed the Senate without substantive changes.  The House initially passed the bill on Friday night, but made technical corrections to it late Monday.

For full details on how the legislation may affect employers, see our previous coverage of the bill here and here.

Employers in the difficult position of making workplace reductions because of COVID-19-related business losses should spare a moment for consideration of layoff notice obligations under the federal Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN”) and its state counterparts (so-called “mini-WARN” laws). The “unforeseen business circumstances” exception in federal WARN and most analogous state laws may excuse strict compliance with notification requirements, but employers should take the time now to analyze the applicability of this exception rather than make assumptions about it.

Thanks to a recent bill signed by Governor Andrew Cuomo on February 6, 2020, striking employees in the State of New York must now only wait fourteen days until they are eligible to receive unemployment benefits. Senate Bill 7310 amends New York Labor Law § 592, reducing the waiting period for unemployment benefit eligibility for striking employees from seven weeks to two weeks.

In an effort to prevent the spread of COVID-19, many employers are permitting, and in some cases requiring, employees to work from home. One unforeseen consequence of requiring employees to work from home is some jurisdictions mandate that employers reimburse their employees for certain expenses incurred as a result of their employment. Accordingly, employers may be required to reimburse employees for reasonable expenses they incur for equipment and services necessary to work from home, such as cell phone, internet, and computer usage expenses.

COVID-19 has disrupted the global economy and employers may soon face the need to reduce expenses associated with exempt employees. Employers can place exempt employees on furlough, or, in some cases, reduce salaries and hours, without jeopardizing the FLSA exemption, but exceptions may need to be made for certain employees on work-authorized visas.

The House amended its Coronavirus Response Bill late on March 16, 2020 and sent it on to the Senate.

Paid Sick Leave Changes

 The sick leave provisions of the bill remained largely intact, and would entitle employees of employers with fewer than 500 employees to take up to 80 hours of paid sick leave for coronavirus-related reasons, including required quarantining, caring for family members with the illness, or for emergency school closings.  To review our initial summary of the bill, which includes discussion of portions of the bill that were unaffected by the technical amendments, click here.  The amendments include a $511 daily cap for leave benefits for employees with their own personal coronavirus-related medical conditions, and a $200 cap for employees caring for others with such symptoms or for school closings.

Importantly, the sick leave amendments also allow the Secretary of Labor to grant exemptions to employers where the secretary determines that imposition of the paid sick leave requirements would “jeopardize the viability of the business as a going concern.”  It also allows healthcare and emergency response employers to apply for exemptions from the Secretary of Labor so that the law would not apply to their employees.

Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.

Consider Contract Terms First

 It goes without saying that employers with collective bargaining agreements should first examine the language of their contracts to determine whether they provide for any increased flexibility in decision-making during emergencies, such as a public health emergency.  If the terms of a company’s CBA specifically allow for increased operational flexibility during emergency situations, then the CBA should govern, and the employer should proceed accordingly.

In the early morning hours of March 14, 2020, the U.S. House of Representatives passed a bill to address concerns related to the spread of COVID-19 (the “Bill”).  The Senate is expected to consider the Bill shortly, and according to media reports, the Bill has the Trump Administration’s support.  Our summary below highlights provisions of the Bill related to leave.  This summary provides information regarding how the bill stands currently, but language changes or substantive amendments may still occur.  We will continue to monitor the Bill as it progresses through the legislative process and update this post accordingly.

UPDATE:  Click here to read our update on revisions made to the Bill.

Note at the outset that, as the Bill stands now, the leave provisions pertain only to employers with fewer than 500 employees.

As the national response to COVID-19 intensifies, states and localities across the country have announced school closures.  Employers should review their state and local laws to determine whether such closings may trigger an employee’s right to take job-protected, or paid leave.

State and Local Leave Allowances for School Closings

Many states have laws that require employers to offer employees paid sick leave. In each state, there are different qualifying reasons that entitle employees to take this leave.  What employers may not realize, is that some states require that employees be allowed to use paid sick leave during certain school closing scenarios.  In at least seven states, school closings caused by a public health emergency are a qualifying reason to take paid sick leave.  Those states are Arizona, Michigan, New Jersey, Oregon, Rhode Island, Vermont and Washington.

Workers’ compensation provides the exclusive remedy for injuries and illness that employees suffer arising out of and within the course of their employment.  In the early stages of this pandemic, work-related travel to high impact countries or work-related exposure in a case that was being tracked by public health authorities provided support for work-related exposure.  In healthcare settings, work-related exposure will likely be established when exposure to infected patients occurs.  But in other settings and as the diseases spreads in the United States, the analysis about whether an illness is covered by workers’ compensation will be more difficult.

Workers’ Compensation and “Ordinary Diseases of Life”:  Many states do not authorize workers’ compensation coverage for “ordinary diseases of life.”  Employers should review their own state workers’ compensation laws closely, but an ordinary disease of life is generally defined as an illness to which the general public is equally exposed, and is not a result of the peculiar or unique nature of an employee’s job.  At this stage of the pandemic within the United States, it is possible that state workers’ compensation commissions may view COVID-19 as an ordinary disease of life because untraced community infection is widespread.  In that case, an employee would not qualify for workers’ compensation, and the employer’s workers’ compensation insurance might not apply.

As reported on the Hunton Insurance Recovery Blog, many businesses rely on event cancellation insurance caused by the necessary cancellations of many marquee events.  Is your event covered?  Read more here.

As reported on Hunton’s Business Immigration Insights Blog, employers face many urgent issues in responding to the US outbreak of the novel coronavirus, COVID‑19.  Employers should remain aware that extraordinary workplace actions can have a special impact on foreign employees with work-authorized visas and can trigger additional employer obligations under US immigration law.

Read more here.

Under California law, an employee’s prior salary cannot be used to justify a pay disparity.  Now, the same is true under federal law – at least in the Ninth Circuit.

In Rizo v. Yovino, the Ninth Circuit recently ruled that an employee’s prior pay history is not a “factor other than sex” that can justify a pay gap under the Federal Equal Pay Act (“EPA”).  This outcome may not surprise employers in California, where state law expressly prohibits using prior salary as a basis for a pay disparity.  But unlike California’s statute, the federal law does not directly prohibit consideration of prior pay.  Rather, the Ninth Circuit looked beyond the plain language of the statute and examined the purpose of the “catch-all” exception, which permits pay differentials based on “any factor other than sex.” The Court concluded that this broadly worded exception “comprises only job-related factors.”

February is a great time for employers with New York operations to check on their progress regarding New Year’s resolutions for revising policies, training supervisors and implementing other changes to ensure compliance with recent developments in the law. The changes in employment laws during 2019 provide strong incentives for employers to update their practices. Following are 13 employment law developments that New York employers should make a part of their 2020 “resolutions” and employment practices.

Read more

Effective January 1, 2020, organ donors in California are entitled to an additional 30 business days of unpaid leave.  AB 1223 extends the maximum leave time available to employees who participate in an organ donation program.  This law applies to private employers with 15 or more employees.

On Thursday, the California Supreme Court ruled that employees must be paid for time spent undergoing security checks before leaving work.

The Universal Paid Leave Amendment Act of 2016 (the “Act”), which implements the District of Columbia’s new Paid Family Leave (“PFL”) program, kicks-in for employees on July 1, 2020.  However, employers must post a PFL notice in the workplace no later than February 1, 2020.

On February 5th the NLRB determined that an employer can, pursuant to a phone use policy, prohibit the possession and use of cell phones in the cabs of its commercial vehicles, and that a prohibition does not interfere with the Section 7 rights of its employees.

In Country Wide Financial Corporation, 369 NLRB No. 12 (2020) (Countrywide), the National Labor Relations Board (“Board”) ruled that an mandatory arbitration agreement violated the National Labor Relations Act (the “Act”) because it restricted an employees’ ability to file and pursue unfair labor practice charges before the Board.

The Third Circuit Court of Appeals ruled Thursday that the City of Philadelphia may enforce its law prohibiting employers from asking applicants about their salary history.

The decision, which overturned a preliminary injunction issued in the district court, upheld the constitutionality of the Philadelphia law under the First Amendment.  The Court held that the law infringed on the free speech rights of employers, but it did not violate the First Amendment because it was narrowly tailored to address a substantial government interest.

Although the World Health Organization (“WHO”) has declared the coronavirus outbreak a “public health emergency of international concern,” WHO has not yet declared the outbreak as a pandemic. Nevertheless, the emergence of the latest coronavirus is an opportunity for employers, as it reminds them to consider policies and procedures related to pandemic planning.  The following are a few of the key considerations for employers when planning for or responding to an outbreak.

Earlier today, Eastern District of California Judge Kimberly Mueller granted a preliminary injunction, prohibiting the state of California from enforcing AB 51, which sought to prohibit companies in California from requiring arbitration agreements as a condition of employment.

AB 51 originally was set to go into effect on January 1, 2020, but the Court granted a motion for temporary restraining order brought by a coalition of business groups, that temporarily prohibited the law’s enforcement through January 31, 2020.  In the interim, the Court considered more fulsome ...

With the new year comes newly-enacted laws in California. Governor Gavin Newsom signed several new laws during the last legislative session, which went into effect January 1, 2020. Is your company ready for these changes?

On December 17, 2019, the Fair Chance to Compete for Jobs Act of 2019 (the “Fair Chance Act”) was signed by the President as an amendment to the National Defense Authorization Act.  This federal “ban-the-box” law proscribes federal agencies and contractors from asking about a job applicant’s criminal history until after they make a conditional offer of employment.  For federal contractors, the law only extends to positions related to a federal contract.  The Fair Chance Act will go into effect on December 17, 2021.  The Office of Personnel Management and General Services Administration will issue implementing regulations before the law goes into effect.

Restrictive covenants and non-compete agreements are increasingly under attack, this time by the Federal Trade Commission (FTC). Companies rely on these restrictions to protect investment in intellectual property, technology and employees. On January 9, the FTC suggested that employee freedom of mobility trumps all of these legitimate business reasons companies use restrictive covenants and non-compete agreements. The FTC has increased its attention to restrictive covenants, and non-compete agreements in particular, under the theory that these types of provisions ...

On November 22, 2019, the federal Consumer Financial Protection Bureau (CFPB) filed a complaint in the U.S. District Court for the Southern District of New York against Sterling Infosystems, Inc. (“Sterling”) regarding allegations that it violated the Fair Credit Reporting Act (FCRA) in providing criminal background checks to employers.  Sterling is a “consumer reporting agency” as defined by the FCRA, which provides background check results to employers when requested.  The CFPB is an independent federal agency tasked with regulating and enforcing a host of consumer protection and financial protection statutes, including the FCRA.

In the last days of 2019, New Jersey Governor Phil Murphy signed a law that bans employers from discriminating against employees based on hairstyles that are associated with race. In doing so, New Jersey joined New York and California—both of which enacted similar legislation earlier in 2019—in prohibiting hair discrimination in the workplace.

The Department of Labor issued two opinion letters on Tuesday in response to specific inquiries that may nonetheless provide some clarity for employers in general.

The first letter was in response to an inquiry from an employer that offers its employees a non-discretionary lump sum bonus of $3,000 (in addition to their regular hourly rate) for completing a 10-week training program.  During the training program, the employees may work more than 40 hours in a given week and the employer requested an opinion from the DOL on the proper method for calculating overtime pay.  In response, the DOL stated that the $3,000 bonus must be included in the regular rate of pay (for purposes of calculating overtime) “as it is an inducement for employees to complete the ten-week training period.”  The DOL then explained that the bonus should be divided into ten $300 increments to be added to the employees’ pay for each week of the training program for purpose of making the overtime calculation.

Illinois joined the growing list of states to legalize marijuana as of January 1, 2020.  Employers with employees in Illinois should consider how the new law may affect their business, and review their policies to ensure compliance with the statute.

As an initial matter, state legalization will not affect employees in certain job positions.  The Illinois law states that corrections officers, law enforcement officers and several other public employees cannot use marijuana, even when they are off-duty.  In addition, employees with commercial drivers’ licenses subject to federal Department of Transportation regulations will remain subject to federal restrictions.

Earlier today, District Judge Kimberly J. Mueller of the United States District Court for the Eastern District of California, granted a temporary restraining order that temporarily prohibits the state of California from enforcing AB 51, a law that would prohibit companies in California from requiring arbitration agreements as a condition of employment.

You can read more about AB51 here and here.

The competing interests of the business community and tipped workers continue to inform public policy decisions about the minimum wage.  We have previously written about increases in the minimum wage on the state, county and municipal level.  Most recently, the cities of Chicago and Denver tackled this issue and joined the many jurisdictions across the country to approve increases to their minimum wage.

California Labor Code §2802 requires employers to reimburse employees for all “necessary expenditures” incurred by an employee in the discharge of his or her duties. Business travel expenses fall into this category, as do uniforms, and even the portion of personal cell phone costs that can be attributed to business use. Thus, theme-based businesses that clothe employees in specialized uniforms or costumes (like the sailor outfits in Season 3 of Stranger Things) must provide those specialized outfits or reimburse employees for the expenses incurred in buying and maintaining them.

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

As originally reported on the Hunton Retail Law Resource Blog, the US Chamber of Commerce, along with two other business-oriented groups, filed an amicus brief urging the Ninth Circuit to overrule a $102 million judgment against Wal-Mart.

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As discussed on the Hunton Retail Law Resource blog on November 5, 2019, for the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA).  Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.

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Earlier this year, we wrote about a proposed bill in California, AB 51, which would prevent employers from requiring their employees to bring all employment-related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.  Earlier this month, Governor Newsom signed AB 51 into law.

This month, California Governor Gavin Newsom signed several employment-related bills into law. The laws go into effect January 1, 2020, and include an extension to the deadline to file certain state discrimination claims and address harassment training and prevention, as well as mandatory arbitration agreements.

The U.S. Supreme Court declined to hear a case on October 7 that likely would have clarified the scope of Title III of the Americans with Disabilities Act (the “ADA”) related to the operation of virtual platforms like websites and applications by private businesses.

The #MeToo movement has placed sexual harassment on the front pages of newspapers, has galvanized some states to reconsider their own sexual harassment laws, and has encouraged employers to take a closer look at their policies and procedures.

With such heightened awareness of sexual harassment, employers may feel an inclination to resolve doubts in favor of the accuser.  A recent Second Circuit decision, however, illustrates a counterweight to this outlook.

Illinois joined a handful of other states when its prohibition on employer inquiries into applicants’ prior wage or salary information took effect this week.

Under the law, no employers in Illinois can ask about the wage or salary histories of job applicants.  If an employer receives salary history information voluntarily from the applicant, the employer still may not use that information to screen candidates.

In a decision first discussed on the Hunton Insurance Recovery Blog on September 6, 2019,  a California Appellate Court held that underwriters at Lloyd’s of London must defend the owner/operator of hundreds of Pizza Hut and Wing Street restaurants in a putative employee class action accusing the company of labor law violations, finding that an employment practices liability insurance (EPLI) policy’s “wage and hour” exclusion must be construed narrowly to bar coverage only for claims related to “laws concerning duration worked and/or remuneration received in exchange for work.” In doing so, the court made clear that “wage and hour” exclusions do not preclude coverage for claims that go beyond the employee’s actual remuneration received in exchange for work.

Earlier today, the United States Department of Labor announced a long-awaited final rule to take effect on January 1, 2020 updating the earnings threshold to $35,568 necessary for employees to qualify for the Fair Labor Standards Act’s (FLSA) “white collar” exemptions.   The DOL estimates that 1.2 million additional workers will be entitled to minimum wage and overtime pay as a result of this increase in the salary basis.

The arbitrability of wage-and-hour actions brought under the California Private Attorneys General Act (PAGA) is an increasingly important issue due to the growth of PAGA-only actions in California.   In that regard, a split has emerged among courts regarding the arbitrability of PAGA claims for unpaid wages under Labor Code Section 558.

The Ninth Circuit Court of Appeals upheld a District Court’s ruling in favor of employer Medtronic, Inc. in a lawsuit alleging Medtronic unlawfully terminated employee Jose Valtierra’s employment because he was morbidly obese, in violation of the Americans with Disabilities Act (“ADA”).  In doing so, the Court declined to decide whether morbid obesity is a disability, leaving this issue unsettled in the Ninth Circuit.

Earlier this year, a federal court in Illinois decertified a small class of Physicians who alleged gender-based pay discrimination under the Equal Pay Act (“EPA”).  Sajida Ahad, MD v. Board of Trustees of Southern Illinois University, No. 15-cv-3308 (C.D. Ill. Mar. 29, 2019).  Although not a groundbreaking appellate court decision, the opinion does provide a roadmap for employers facing EPA collective actions, which may gain traction in the wake of increasing media attention on pay disparities.

In a case of first impression, the Third Circuit rejected the view of the United States Department of Labor, ruling that incentive payments from third parties are not necessarily included in the calculation of an employee’s overtime rate.

In Secretary United States Department of Labor v. Bristol Excavating, Inc., No. 17-3663, 2019 WL 3926937 (3d Cir. Aug. 20, 2019) (“Bristol”), the Court of Appeals overturned a District Court’s order holding that all incentive payments made by third parties must be included in an employee’s overtime rate under the Federal Labor Standards Act (“FLSA”). The unanimous Third Circuit panel held that the understanding of the employer and employee determines whether third-party payments should be included in the overtime rate.

The United States District Court for the Western District of New York recently granted an early dismissal of a class action lawsuit prior to class certification.  Mandala v. NTT Data, Inc., 18-CV-6591 CJS, 2019 WL 3237361, at *1 (W.D.N.Y. July 18, 2019). The plaintiffs in Mandala were two African-American men who applied for and were offered jobs with the defendant employer.  After the employer conducted a criminal background check on the plaintiffs and found they each had a felony criminal conviction, the employer withdrew their job offers.  The plaintiffs filed a class action lawsuit against the employer alleging claims for disparate impact race discrimination under Title VII, and violations of New York state laws prohibiting criminal history discrimination and regulating the background check process.

On July 11, 2019, the House Financial Services Committee, led by Chairwoman Maxine Waters (D-CA), considered The Restricting Use of Credit Checks For Employment Decisions Act (the “Act”) as one of four bills designed to reform the Fair Credit Reporting Act (FCRA) and the credit reporting system.

After a nearly six-year legal battle, the Fifth Circuit has struck down the U.S. Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the consideration of criminal history in employment decisions.  On August 6, a three-judge panel held that the Guidance was a substantive rule the EEOC had no authority to issue and that the EEOC can no longer enforce the Guidance or treat it as binding in any respect.

Yesterday, Governor Cuomo signed the last of several bills that massively overhauls New York State’s discrimination and harassment laws.  The changes, some of which are effective immediately, are explained in more detail here.

The main takeaways are as follows:

On June 5, 2019, Nevada Governor Steve Sisolak signed into law Assembly Bill No. 132 (“A.B. 132” or the “new law”), which is the first state law to curb pre-employment marijuana drug tests.  The new law has two primary effects: 1) it makes it unlawful for Nevada employers to fail or refuse to hire a prospective employee because the applicant submitted to a screening test and the results of the test indicate the presence of marijuana; and 2) it provides employees who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional screening test within the first 30 days of employment. 

The Fifth Circuit recently joined a majority of its sister circuits in holding that the question of whether arbitration agreements authorize class arbitration should be decided by courts.

In 20/20 Communications v. Lennox Crawford, the Fifth Circuit held that the availability of class-wide arbitration in a Fair Labor Standards Act case is a “gateway issue” of arbitrability.  The court reasoned that the fundamental differences between individual and class-wide arbitration required judicial determination as to which approach was available, absent “clear and unmistakable” language in the agreement delegating the decision to the arbitrator.

The California Labor Code requires employers to reimburse employees for certain expenses, but it’s not always clear which expenses should be reimbursed by the employer, and which expenses should be borne by employees.  Here’s a list of Five Things to Remember About Employee Reimbursements to help California employers navigate this area of the law.

In a unanimous decision in Rodriguez v. Nike Retail Srvs., the Ninth Circuit overturned a California district court’s ruling in a wage and hour class action under the California Labor Code that granted Nike’s motion for summary judgement after applying the federal de minimis doctrine.

The California Department of Fair Employment and Housing (“DFEH”) just last month filed an enforcement action in Los Angeles Superior Court against Riot Games, Inc. (“Riot Games”) to compel compliance with its ongoing investigation into allegations of gender discrimination, sexual harassment, sexual assault, and retaliation.  While the identified claims are broad, the primary thrust appears to be the contention that female employees at Riot Games are paid less than their male counterparts.

Earlier this year, Dallas passed an ordinance requiring all private employers to provide paid sick leave to employees. The Dallas ordinance follows similar laws passed recently in both Austin and San Antonio.

While a district court held the Austin ordinance unconstitutional and preempted its enactment pending a forthcoming Texas Supreme Court decision, the Dallas Ordinance is still set to go into effect August 1, 2019 for businesses with more than five employees (while those with five or fewer have until August 1, 2021 to comply).