Hunton Employment & Labor Perspectives

In the last weeks of the Trump Administration, the Department of Labor (DOL) published its final rule for determining whether an individual is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The distinction between an employee and independent contractor is of critical importance because independent contractors are not entitled to the benefits of the FLSA, namely minimum wage and overtime.

With little forewarning to the regulated community, the California Division of Occupational Safety and Health (“Cal/OSHA”) passed a sweeping new standard requiring employers in the state to implement prescribed COVID-19 protections. On November 19, Cal/OSHA voted unanimously to pass the “Emergency COVID-19 Prevention Regulations” (the “Standard”) and on November 30, the Standard went into effect. As covered in our previous updates, the Standard obligates employers to, among other things, write and implement a COVID-19 Prevention Program, engage in contact tracing following any positive case that involved potential workplace exposure, require physical distancing and mask wearing and improve ventilation, and to report all “outbreaks” to the public health department.

On December 21, 2020 the NLRB adopted an ALJ’s determination that a union’s request for information about non-bargaining unit employees was relevant. One of the issues present in the case was whether a union’s request for information about non-bargaining unit employees sought relevant information. As discussed below, the NLRB upheld the ALJ’s determination that the information was relevant solely because the employer should have known the information was relevant based on the circumstances surrounding the request.

HuntonAK Labor and Employment partner Emily Burkhardt Vicente has been selected as part of the Los Angeles Business Journal’s inaugural “Thriving in Their 40s” award.

The award recognizes outstanding market leaders and professionals in Los Angeles in their 40s. Emily was selected based on her contributions to the firm and profession.

Emily’s profile can be seen online at LABJ.

Read the Firm press release for additional information.

Congratulations!

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance with a new section pertaining to vaccinations.

The updated release—“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”—discusses how employers who require vaccinations should respond to an employee who is unable or unwilling to receive a COVID-19 vaccination because of a disability or sincerely held religious belief.

Hunton labor and employment attorneys Ryan Bates, Ryan Glasgow and Sharon Goodwyn have been recognized by their peers as members of Virginia Business magazine’s 2020 Legal Elite.

The annual recognition of Virginia’s Legal Elite is a project of Virginia Business magazine, in cooperation with the Virginia Bar Association. Approximately 7,000 lawyers across the state were asked by the magazine to nominate colleagues they considered “elite” in 20 categories, including labor and employment.

Please read the firm press release for a complete list of HuntonAK honorees.

Earlier this month, the EEOC launched EEOC Explore, “an interactive data query and mapping tool” that gives users access to aggregate data on more than 73,000 employers and 56 million employees across the United States.  According to the agency, EEOC Explore “enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the need for experience in computer programming or statistical analysis.”

Five HuntonAK Labor and Employment partners were recognized in the most recent publication of the Lawdragon 500 Leading U.S. Corporate Employment Lawyers.

• Juan Enjamio
• Kurt Powell
• Emily Burkhardt Vicente
• Kevin White
• Holly Williamson

The Lawdragon guide represents the nation’s top talent “defending wage and hour, discrimination and a host of other claims…and handling union and other labor-management relation matters.”

California is well known for its broad restrictions relating to non-competition clauses applicable to workers. After a recent decision by the Federal Circuit, such notoriety may extend to the patent realm. Employers should beware to not fall into this employment agreement trap.

In what it characterized as an issue not previously addressed by California’s appellate courts, in Whitewater West Industries v. Alleshouse, No. 2019-1852 (Fed. Cir. Nov. 19, 2020), the Court of Appeals for the Federal Circuit held that that California state law not only restricts non-competition ...

The Federal Reserve anticipates an approximate two percent reduction in unemployment by June 2021, envisioning rapid mass-hiring by employers once governments lift the more stifling COVID-19 restrictions.  Businesses requiring pre-employment background checks may be uniquely exposed to liability under the Fair Credit Reporting Act (“FCRA”) if minor mistakes are amplified by mass-hiring events.