Hunton Employment & Labor Perspectives

Since 2014, OFCCP-covered employers have been required to invite job applicants, pre-offer, to disclose their disability status via a form prescribed by the OFCCP.  The information thus obtained helps employers analyze (1) the efficacy of their diversity recruiting efforts and (2) hiring rates of persons with disabilities.

This week, the Agency unveiled a modified format for that invitation. OFCCP hopes the revised form will increase the response rate for applicants and employees, who are often reluctant to disclose disabilities.  The form incorporates some changes requested by employers, and reduces the invitation to a single page.

The California Court of Appeals for the Second District evaluated the validity of unlimited vacation policies in a recent decision. Unlimited vacation policies operate how one might expect: instead of having a specific number of hours vest that the employee can use to take paid time off, an unlimited policy provides that the employee can take as much vacation per year as they would like to subject to company approval. In California, when vacation vests, it is treated as wages at termination and must be paid out. Since unlimited vacation does not vest, there is no payment due at termination.

Today the EEOC published a Notice in the Federal Register, announcing a delay in its collection of EEO-1 Component 1 data -- until March of 2021 -- due to the coronavirus pandemic.  (FR Doc. 2020-09876).  Component 1 data is what most employers associate with the EEO-1 Report: employment data summarized by job category, race/ethnicity, and gender.  There will now be no EEO-1 Reports submitted in 2020.

A recent Fifth Circuit opinion held that a company’s arbitration agreement did not prevent employees from pursuing their claims as a collective arbitration, rather than individual claims.  As class claims related to COVID-19 begin to surge, the opinion provides occasion for companies to review their arbitration agreements to ensure that the companies’ aims are clearly drafted.

 COVID-19

The harm COVID-19 has wrecked on workplaces is no secret.  As employees and employers grapple with remote work, pay reductions, and record unemployment, it is reasonable to expect a surge of employment litigation in the months ahead.

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) released an OSHA Alert for restaurants and beverage service businesses providing curbside and takeout service during the pandemic.  This Alert is one in a series of industry-specific alerts that OSHA has published, and will continue to publish, to assist and educate businesses that will re-open (or that continued to operate), and which recommends certain measures to protect employees and patrons during the COVID-19 pandemic.

As states have worked to process the millions of unemployment claims arising out of the pandemic, many questions have arisen about who is eligible for the federal Pandemic Unemployment Assistance (PUA) benefit under the CARES Act.  The Department of Labor’s most recent guidance attempts to answer many of these questions posed by the states and may be helpful to employers considering furloughs or layoffs.

In recent weeks, the states have begun to announce strategies for reopening public life and business activities. Just as the shutdown orders took varying forms on a state-by-state basis, it appears the reopening orders will follow a similarly varied and state-by-state approach, creating new challenges for multi-state employers.  However, there are some trends starting to emerge that may help employers piece together a cohesive strategy for bringing their employees safely back to work.

The Centers for Disease Control and Occupational Safety and Health Administration collaborated to release new guidance for employers in the meat processing industry on April 26.

OSHA and the CDC noted several unique facets of meat processing work that exposed workers to increased likelihood of COVID-19 transmission at work, including close contact, the duration of the close contact, shared tools and surfaces and the frequency of ride-sharing and community-based interactions among employees.  As a result, the organizations released additional guidance to help employers keep employees safe, even as they continue to work to keep the food supply chain running.

In a recent decision of first impression, the NLRB held that its contract coverage doctrine does not apply to changes to the terms and conditions of employment after the expiration of the parties’ collective bargaining agreement, unless the contract contained explicit language that the relevant provision would survive contract expiration.  Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 369 NLRB No. 61 (2020).

The contract coverage doctrine was adopted by the NLRB in MV Transportation, Inc., 368 NLRB No. 66 (2019). There, the Board held that it would “examine the plain language of the collective bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally.”  Id.  The contract coverage doctrine dispenses with the requirement that an employer demonstrate that the union clearly and unmistakably waived its right to bargain over changes made based on contractual language.

Please join Hunton Andrews Kurth’s labor and employment attorneys for an engaging webinar discussion on business considerations for employers as employees return to work when shelter in place orders are lifted.

Monday, May 11, 2020
3:00 pm–4:00 pm ET