Hunton Employment & Labor Perspectives

HuntonAK’s Labor and Employment practice has been recognized as nationwide leaders by Benchmark Litigation’s 2021 Labor and Employment guide. The Labor and Employment Team was recognized as a Tier 2 law firm nationwide and recommended in several individual jurisdictions.

On September 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued written Guidance to implement Executive Order 14042 (“Ensuring Adequate COVID Safety Protocols for Federal Contractors”), which was signed by President Biden on September 9, 2021.  The Guidance is a key component of President Biden’s larger “Path Out of the Pandemic: COVID-19 Action Plan.”

In a huge win for California employers, the California Court of Appeals recently confirmed that courts have discretion to strike claims for penalties under the Private Attorneys General Act of 2004 (“PAGA”) if the claims will be unmanageable at trial.  This decision will help employers defeat—or significantly pare down—the broad and unwieldy claims for PAGA penalties that have become popular with the plaintiffs’ bar.

On September 8, 2021, the House Education and Labor Committee issued proposed legislation in connection with the House’s new spending bill. Among other pro-union proposals issued in connection with the Protecting the Right to Organize (PRO) Act, the proposed legislation seeks to amend the National Labor Relations Act (NLRA) by banning class and collective action waivers.

The proposed legislation says that no employer shall “enter into or attempt to enforce” any express or implied agreement not to “pursue, bring, join, litigate, or support any joint, class, or collective claim” arising from the employment relationship.   This is unwelcome news to employers who rely on class and collective action waivers in their arbitration agreements.

Earlier this month, the Equal Employment Opportunity Commission (EEOC) held a webinar on artificial intelligence (AI) in the workplace.  Commissioner Keith Sonderling explained that the EEOC is monitoring employers’ use of such technology in the workplace to ensure compliance with anti-discrimination laws. The agency recognizes the potential for AI to mitigate unlawful human bias, but is wary of rapid, undisciplined implementation that may perpetuate or accelerate such bias.  Sonderling remarked that the EEOC may use Commissioner charges—agency-initiated investigations unconnected to an employee’s charge of discrimination—to ensure employers’ are not using AI in an unlawful manner, particularly under the rubric of disparate impact claims.

Employers operating in California often ask employees to agree to arbitrate employment-related disputes as a term and condition of employment.  In its recent Chamber of Commerce v. Bonta decision, the Ninth Circuit took a significant step toward prohibiting such mandatory employment arbitration agreements.  However, the combination of a 2-1 panel decision (authored by a visiting judge from the Tenth Circuit), a scathing dissenting opinion, and a holding that splits with decisions from the First and Fourth Circuits all but ensures more litigation.  As a result, the case is far from over, so while employers eventually may have to consider changing their arbitration agreement practices, they very likely have some time to let the dust settle before doing so.

On September 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) filed a first-of-its-kind lawsuit against an employer that allegedly denied accommodation for telework in violation of the Americans with Disabilities Act (the “ADA”). Currently, the case is the only lawsuit the EEOC has filed concerning a request for an ADA accommodation related to COVID-19. The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation.

The Office of Federal Contract Compliance Programs (“OFCCP”), an agency within the Department of Labor, has recently announced two significant changes that will impact covered contractors and subcontractors in the coming months. 

Private employers with 100 or more employees will face sweeping new requirements related to COVID-19 vaccination and testing under a plan announced by President Joe Biden on September 9.

Last month, a judge out of the Alameda County Superior Court ruled California’s Proposition 22 unconstitutional, constituting a significant legal obstacle to this young statute.

Proposition 22 (formally the Protect App-Based Drivers and Services Act, Bus. & Prof. Code, §§ 7448, et seq.) was a ballot initiative passed by a majority of California voters in the November 2020 election, which primarily aimed to classify application-based transportation and delivery companies’ drivers as independent contractors rather than employees. Proposition 22 arose in response to Assembly Bill 5, 2019 legislation codifying the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court, which created a new “ABC” test for determining whether workers are properly classified as independent contractors. (More information on AB 5 can be found in this previous Hunton Employment & Labor Perspectives post.)