Hunton Employment & Labor Perspectives

On April 7, 2021, a split panel of the U.S. Court of Appeals for the Eleventh Circuit (the “11th Circuit”) issued its highly-anticipated decision in Gil v. Winn-Dixie Stores, reversing a 2017 judgment against Winn-Dixie that found that the grocery chain’s website violated Title III of the Americans with Disabilities Act (“ADA”).  The 11th Circuit reversed and remanded the case for further proceedings, in part, based on its finding that websites are not a “public accommodation” under the ADA.

President Joseph R. Biden on April 12 nominated current Cal/OSHA Chief Doug Parker to lead federal OSHA.  If confirmed, employers should prepare for the potential that California-style enforcement may reach the federal law.

President Biden has pledged to make improved working conditions a central tenet of his administration, including support for changes to federal OSHA and the National Labor Relations Act.  Parker’s nomination is consistent with a trend towards increased enforcement of employers by federal regulators.

Uber Technologies, Inc. has been sued in a class action lawsuit alleging the company’s use of criminal background checks discriminates against Black and Latinx drivers. The complaint, filed in the U.S. District Court for the Southern District of New York on April 8, challenges Uber’s “unlawful use of criminal history to discriminate against its drivers in New York City as well as its brazen noncompliance with human rights and fair credit laws.”

Named plaintiff Job Golightly, a Black resident of Bronx County, New York, drove for Uber from 2014 through August 2020. Golightly claims that his criminal history consists of a single 2013 misdemeanor speeding violation from Virginia. According to the lawsuit, until 2017 Uber had relied solely on background checks conducted by the New York City Taxi and Limousine Commission (TLC). Plaintiffs allege that in mid-2017, in response to negative news coverage on assaults committed by drivers, Uber began using the credit reporting agency Checkr to conduct additional background checks on current and prospective drivers. As a result, in August 2020 Uber allegedly conducted a background check on Golightly that revealed his 2013 speeding violation. One day later, Golightly claims that Uber deactivated him from its platform, preventing him from driving for the company.

Covid-19 has left employers who want their employees back in the office in a difficult position. With the pandemic still raging, many employees are fearful of returning to the office with unvaccinated peers. In order to ease their employees’ concerns and provide a safe work environment, some employers are offering incentives to get vaccinated. Some existing vaccine incentives include gift cards, time off after receiving the second dose, pay for the time spent getting the vaccine, or bonuses ranging from $75 to $500. Although offering vaccine incentives may seem like a solution at this time, employers should be mindful of the legal ramifications of providing their employees with incentives for receiving the vaccine.

On March 22, 2021, Marty Walsh, the two-term Boston mayor, was confirmed as the Labor Secretary by the United States Senate in a 68-29 vote.  He becomes the first union leader to run the Department of Labor (the “DOL”) in over four decades.

Workplace safety will be one area that we can expect to undergo significant change under Walsh.  Recently, the Occupational Safety and Health Administration (“OSHA”) released a new National Emphasis Program (“NEP”) that permits OSHA to conduct programmed inspections of the risk of worker exposure to COVID-19.  The employers covered by the NEP are those OSHA considers as those where employees have a higher likelihood of close-contact exposure.  The NEP includes language regarding employer outreach and compliance assistance; but, it is clear the primary emphasis will be on inspection targeting.

In recent years, there has been a growing trend amongst litigants of protecting documents filed as part of the judicial record from public view by sealing them by agreement under a protective order.  However, a recent opinion out of the U.S. Court of Appeals for the Fifth Circuit criticizes this now-common practice.  Binh Hoa Le v. Exeter Fin. Corp., No. 20-10377, ––– F.3d –––, 2021 WL 838266 (5th Cir. March 5, 2021).

The American Rescue Plan Act (“the Act”) signed in March 2021 provides for a 100% COBRA premium subsidy for certain individuals who are eligible for and enroll in COBRA coverage between April 1, 2021 and September 30, 2021. Employers sponsoring health plans should take action quickly to ensure that the subsidy is properly administered and consider its effects on any planned layoffs or other severance events.

HuntonAK labor and employment partner Emily Burkhardt Vicente was honored by the Los Angeles Business Journal’s 2021 Diversity & Inclusion Awards as a nominee for Best Diversity & Inclusion Executive of the Year.

The awards program recognizes diversity and inclusion champions in the Los Angeles region for their ongoing efforts to celebrate and respect the unique needs and perspectives of all their team members while simultaneously creating an inclusive environment that enables diversity to thrive.

Emily serves as co-chair of the firm’s Diversity & Inclusion Committee ...

It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.

The Seventh Circuit Court of Appeals recently decertified a class of female correctional facility employees who alleged gender discrimination based, in part, on a theory of “ambient” harassment.  The opinion underscores how the individualized nature of harassment claims can act as a barrier to class certification.

Nature of Claims

Female employees of the Cook County Jail Complex sued their employer for gender discrimination based on the County’s alleged failure to prevent and remedy male prison inmates’ sexual harassment of the plaintiffs.  Plaintiffs claimed that Cook County permitted this harassment to go unchecked and failed to maintain effective procedures to prevent and remedy the harassment.