Hunton Employment & Labor Perspectives

Virginia joined the list of states limiting employers’ ability to include confidentiality and non-disparagement provisions in employment agreements for matters related to sexual harassment.  But the law’s scope seems limited, and does not appear to apply to post-employment severance agreements.

On May 1, 2023, the National Labor Relations Board issued its decision in Lion Elastomers, 372 NLRB No. 83 (2023), which will make it more challenging for employers to discipline workers who engage in abusive workplace conduct in connection with Section 7 activity under Board law.  The decision overrules General Motors, 369 NLRB No. 127 (2020), which logically and uniformly applied the Board’s traditional Wright Line burden-shifting framework to cases involving employee outbursts.  The Board’s decision reinstates a triad of “setting-specific” tests previously used to determine whether an employee’s opprobrious conduct forfeited the Act’s protection.  

Employers who conduct background checks on applicants or employees must comply with the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.  Among other things, the FCRA requires employers who procure criminal background reports (“consumer reports”) to provide applicants and employees with a Summary of Rights form as prepared by the Consumer Financial Protection Bureau (CFPB) when providing them with the FCRA-required pre-adverse action notices. See 15 U.S.C. § 1681b(b)(3)(A)(ii).

The National Labor Relations Board (“Board” or NLRB) recently decided in Noah’s Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) to impose extraordinary remedies upon an employer who violated a court order imposing certain collective bargaining obligations and committed multiple violations of the NLRA throughout the collective bargaining process. The extraordinary remedies included: the posting and distribution of a notice explaining employee rights under the NLRA (in addition to the standard notice that states the NLRB found NLRA violations, the violator will not commit those violations in the future, and the remedies); the reading of the notices in the presence of employees by the employer’s chief executive officer, or, if the employer prefers, by a Board agent in the presence of the CEO; and site visits by an NLRB agent to determine compliance for one year.

On April 14, 2023, the California Civil Rights Department (“CRD”), formerly known as the Department of Fair Employment and Housing, announced that it will now accept “enforcement deferral requests” from employers currently obligated to provide a “Labor Contractor Employee Report” by the upcoming May 10, 2023 deadline. 

The Fourth Circuit issued an opinion in Messer et al. v. Bristol Compressors International, LLC et. al. that should serve as a cautionary tale to employers planning to use severance agreements when implementing layoffs.  There, the court considered three questions.  First, whether Bristol Compressors validly eliminated its severance plan before terminating Plaintiffs’ employment.  Second, whether certain Plaintiffs who signed a Stay Bonus Letter Agreement (“SBLA”) waived their claims against Bristol Compressors.  And third, whether four of the Plaintiffs received adequate notice under the WARN Act before their employment was terminated.

In a recent decision in Perez v. Express Scripts, Inc., the U.S. District Court for the District of New Jersey determined that plaintiff and a conditionally certified class of 200 members in a misclassification class action were exempt given that they were highly compensated.

Webinar: Know Your Data! Best Practices for Performing a Compensation Analysis

Tuesday, April 18, 2023
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HuntonAK Immigration Senior Attorney Shaena Rowland was recently named as a 2023 Immigration Law Trailblazers by The National Law Journal.

The Departments of Labor, Treasury and Health and Human Services (collectively, the Departments) recently issued new guidance in the form of FAQs to plan sponsors and administrators of group health plans to assist with them with preparations for the end of the COVID-19 National Emergency and the Public Health Emergency.[1] [2]