Hunton Employment & Labor Perspectives

On July 27, 2020 the NLRB issued a supplemental decision involving a labor law successor employer, which unilaterally implemented terms and conditions of employment prior to commencing operations. The question presented was whether and to what extent the successor could take further unilateral action, free of the duty to bargain with the union. As discussed below, the Board determined that the applicable standard in such cases is whether the successor’s unilateral action was “reasonably encompassed” by the unilaterally imposed terms.

Scott Nelson, a leading labor and employment lawyer with more than two decades of experience handling complex domestic and international employment matters and commercial litigation, has joined Hunton Andrews Kurth LLP as a partner in the firm’s Houston office.  Nelson joins Hunton Andrews Kurth from Seyfarth Shaw LLP, where he was a partner. He also previously served as leader of Baker McKenzie LLP’s domestic U.S. Employment Counseling and Litigation practice.

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.

The Department of Labor has released a new set of “Questions and Answers” for employers under the Families First Coronavirus Response Act (“FFCRA”).  The guidance supplements the temporary rule issued by DOL in April; final regulations are still forthcoming.

FFCRA provides (1) paid sick leave and (2) paid family medical leave under certain circumstances created by COVID-19.  We previously posted about these forms of leave in March, April, and June.  See our entries here, here, here, here, and here.

Over the past 40 years, the National Labor Relations Board (the Board) has grappled with the appropriate balance between an employer’s right to discipline an employee for abusive behavior and an employee’s right to engage in Section 7 activity. Much to the dismay of employers, this balancing act has historically tipped heavily in favor of protecting an employee’s right to engage in Section 7 activity at the expense of an employer’s right to discipline its employees for conduct such as using racial slurs while picketing, engaging in sexist behavior, or yelling obscenities at a supervisor while discussing wages. As a result, the Board has issued countless decisions finding an employer violated the National Labor Relations Act (the Act) for disciplining employees who engage in objectively offensive, racist, and abusive conduct while also engaged in Section 7 activity.

Virginia became the first state in the country to pass a workplace safety standard specific to COVID-19 on July 15.  It includes hazard assessment, communication and training requirements, depending on the types of tasks employees perform at work.

HuntonAK employment partner, Roland Juarez, was recently named to the Daily Journal’s Top Labor & Employment Lawyers. This annual list recognizes California’s top attorneys who have made significant contributions to their field of practice.

Roland also has been named to Los Angeles Business Journal’s list of 2020 Leaders of Influence: Top Litigators & Trial Lawyers for the second year in a row.

With more than 300 nominations this year, Roland was selected as one of 50 litigators chosen by LABJ. The list recognizes “attorneys who go to the proverbial mat to fight for their ...

As part of Virginia’s overhaul of its labor and employment laws—on which we previously reported—the Commonwealth also enacted Virginia Senate Bill 712, which amended the Virginia Human Rights Act (hereafter, the “VHRA”) to require covered employers to reasonably accommodate the known limitations of an employee as it relates to pregnancy, childbirth, or related medical conditions, unless such an accommodation would impose an undue hardship on the employer.

Employee commute time in California generally is not compensable as “time worked” unless the employee is subject to the employer’s control and unable to use that time for his or her own purposes.  But is an employee subject to the employer’s control if she is required to carry her employer’s equipment and tools in her personal vehicle?  According to a California Court of Appeal, the answer could depend on the size of the vehicle.

The U.S. District Court for the District of Columbia has issued its third, and presumably final, decision in the lawsuit challenging the National Labor Relations Board’s new election rules. In the latest order, the Court granted summary judgement in favor of the NLRB on the remaining counts of the complaint.