Hunton Employment & Labor Perspectives

On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the “Board”), Jennifer Abruzzo, issued a memorandum providing guidance in light of the NLRB’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, the Board in McLaren Macomb held that overly broad non-disclosure and non-disparagement provisions in severance agreements violate employee rights under the National Labor Relations Act (NLRA or the “Act”). The General Counsel’s memorandum—which is directed to the Board’s regional offices over which she exercises supervisory authority—seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors. The memorandum is not legally binding, but it does give employers a more informed roadmap for how the Board initially will handle unfair labor practice (“ULP”) charges challenging severance agreements.

Webinar: Don’t Get Lost In the Dark – Navigating Pay Transparency and Pay Equity Laws

Tuesday, March 21, 2023
11:00 am–12:00 pm ET
10:00 am–11:00 am CT
8:00 am–9:00 am PT

Now perhaps more than ever, employers of all stripes are grappling with an increased focus on pay equity, and it is transforming employer approaches to compensation. Not only are employers dealing with a ramped-up focus on pay equity and technical compensation compliance by several agencies, in just the past few years states and localities from sea to shining sea have enacted new laws impacting various aspects of employers’ compensation and job posting practices. This presentation provides an overview of the pay equity landscape as well as discusses other pay transparency and reporting requirements across the nation.

On March 31, 2023, Los Angeles County’s COVID-19 emergency proclamation and orders that have been in place since March 2020, will officially end.  The Los Angeles County Board of Supervisors made this unanimous decision on February 28, 2023, in light of the recent progress in the COVID-19 pandemic.  The official end of Los Angeles County’s COVID-19 emergency will directly impact the status of employee COVID-19 Supplemental Paid Sick Leave and Paid Vaccine Leave, both of which expire on April 14, 2023.

Pay equity and transparency have become hot topics across the country as states and the federal government seek to ensure pay equity for employees, regardless of protected class. Federal anti-discrimination laws like the Equal Pay Act and Title VII provide legal recourse for employees who have experienced pay discrimination. As many employers know, federal law prohibits employers from demanding pay confidentiality from employees. Pay transparency laws go a step further and require employers to publish ranges for open positions, adding transparency to the conversations about ...

An Administrative Law Judge (ALJ) of the National Labor Relations Board (Board) recently issued a decision which hints that changes might be on the horizon for how the National Labor Relations Act (Act) is applied towards educational institutions with religious affiliations. Saint Leo University Inc., 2023 WL 2212789 (2023). The Board’s assertion of jurisdiction over religious institutions reflects a balancing between the First Amendment of the United States Constitution and the rights of an institution’s employees under the Act. University of Great Falls v. NLRB, 278 F.3d 1335, 1343-44 (D.C. Cir. 2002). The test the Board currently applies in determining whether it has jurisdiction over an employer with religious affiliations is found in Bethany College, 369 NLRB No. 98 (2020). General Counsel Abruzzo indicated her interest in replacing the Bethany College standard with a new standard in her Mandatory Submissions to Advice. NLRB Gen. Counsel. Mem. 21-04, at 5 (Aug 12, 2021).

California’s new bereavement leave law, which became effective beginning January 1, 2023, requires most employers to allow their employees to take up to five days of leave upon the death of certain family members.  Although previous bills providing for bereavement leave had been stymied by vetoes, Governor Gavin Newsom signed the new legislation—Assembly Bill (“AB”) 1949—into law as an “important step” to ensure that low-wage workers “can access the time off they’ve earned while still providing for their family.”  The new law makes California one of the few states requiring employers to provide bereavement leave.

The National Labor Relations Board (“Board” or NLRB) decided in McLaren Macomb, 372 NLRB No. 58 (2023) that an employer violated the National Labor Relations Act (NLRA) by offering furloughed employees severance agreements that contained confidentiality and non-disparagement provisions. “A severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their [NLRA] rights, and that employers’ proffer of such agreements to employees is unlawful,” announced the Board. In rendering the decision, the NLRB overruled Baylor Univ. Med. Ctr., 369 NLRB No. 43 (2020)[1] and IGT d/b/a Int’l Game Tech., 370 NLRB No. 50 (2020). In those cases, the Board decided that employers did not independently violate the NLRA simply by presenting employees with severance agreements containing non-assistance, non-disclosure, and non-disparagement provisions that arguably restricted NLRA rights absent some additional circumstances.

Avid readers of this blog will recall three prior postings about a wage and hour dispute under the Fair Labor Standards Act (“FLSA”) between an off-shore tool-pusher, Michael Hewitt, and his prior employer, Helix Energy Solutions Group, Inc.  As background, those articles can be found here: 

• Supreme Court Will Consider Helix Day Rate Pay Case
• Cert Filed in Hope Supreme Court Will Reevaluate Fifth Circuit’s FLSA OT Ruling
• Upcoming Fifth Circuit Hearing to Address FLSA Day-Rate Issues

At the core of the dispute was whether Hewitt was entitled to receive an overtime rate for hours ...

Background

On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a draft of its Strategic Enforcement Plan (“SEP”) in the Federal Register, which outlines the enforcement goals for the Commission for the next four years. While the Agency aims to target a number of new areas – such as underserved workers and pregnancy fairness in the workplace – it is notable that it listed as priority number one the elimination of barriers in recruitment and hiring caused or exacerbated by employers’ use of artificial intelligence. 

Last week, the Ninth Circuit issued a decision holding that California employers can require employees to enter into mandatory arbitration agreements as a condition of their employment.  In the decision, Chamber of Commerce v. Bonta, No. 20-15291 (9th Cir., Feb. 15 2023), a three-judge panel reversed the Ninth Circuit’s own prior decision and found that Assembly Bill 51 (AB 51), which sought to impose criminal and civil penalties on employers who require employees to enter into such agreements, is preempted by federal law.