Hunton Employment & Labor Perspectives

Earlier this week, the National Labor Relations Board (“Board” or “NLRB”) decided that employers cannot restrict employees from displaying union insignia (e.g., buttons, clothing, pins, and stickers) absent a showing of “special circumstances” in Tesla, Inc., 370 NLRB No. 131 (2022).  In connection with this ruling, the Board overruled Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), which analyzed the lawfulness of facially neutral work rules that regulated the size and appearance of such union insignia under a less exacting standard.  Employers with policies that address employee appearance, such as dress code or uniform policies, should review those policies for compliance purposes in light of Tesla.

Earlier this year, Harris County, Texas, which encompasses a substantial majority of the City of Houston, became the sixth Texas city or county to embrace a “ban the box” policy when it adopted the Fair Chance Policy.

On August 16, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment to Wal-Mart Stores East, L.P. (Walmart), who was accused by the Equal Employment Opportunity Commission (EEOC) of engaging in sex discrimination under the Pregnancy Discrimination Act and the Civil Rights Act of 1964 by offering temporary light duty to employees who were injured on the job, but denying a similar accommodation to pregnant employees. 

The Centers for Disease Control (“CDC”) announced major changes to its COVID-19 guidance on August 13, providing additional flexibility for employers seeking a return to normal operations after the pandemic.

HuntonAK Labor and Employment associate Alyson Brown for the second consecutive year was selected to The National Black Lawyers Top 40 Under 40 in Virginia, Class of 2022.

Alyson’s selection is by invitation only following a multi-phase review process that includes peer nominations and third-party research. The National Black Lawyers recognizes attorneys under 40 from each state who demonstrate superior leadership, reputation, influence, stature and profile as a Black Lawyer.

Alyson is an active member of the Richmond Bar Association and serves on the Program Committee.  ...

The Department of Justice (DOJ) announced earlier this month that it will begin the rulemaking process related to “Nondiscrimination on the Basis of Disability:  Accessibility of Web Information and Services of State and Local Governments.” 

The National Labor Relations Board (NLRB) and the Department of Justice (DOJ) recently announced a new partnership, which, in their words, will “better protect free and fair labor markets and ensure that workers can freely exercise their rights under the National Labor Relations Act.”  Through a memorandum of understanding (MOU), the agencies have agreed to collaborate with the stated aim of advancing workers’ rights to obtain fair market compensation and to freely exercise their legal rights under labor laws.

The U.S. Equal Employment Commission (“EEOC”) has recently updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” (“Q&A)  and taken the position that employers may only screen employees for COVID-19 if it is a business necessity that is justified by “current pandemic circumstances and individual workplace circumstances” because a COVID-19 viral test is a medical examination within the meaning of the ADA.

Just days ago, the highest court in Massachusetts—the Supreme Judicial Court (“SJC”)— decided whether former food delivery drivers for GrubHub could escape their arbitration agreements and bring a wage and hour class action lawsuit in court. In excellent news for employers operating in the intrastate delivery sector, the SJC held that they could not. Archer v. GrubHub, Inc., SJC-13228. 2022 WL 2964639 (July 27, 2022) (“GrubHub II”).

On June 8, 2022, the California Department of Public Health (CDPH) issued an Order with definitions for “close contact” and “infectious period” that conflict and abrogate the definitions for these terms within the California Division of Occupational Safety and Health’s (Cal/OSHA) current COVID-19 Emergency Temporary Standards (ETS).  Employers must comply with the new CDPH definitions, even where they differ from the text of the California ETS or federal Centers for Disease Control guidance.