Hunton Employment & Labor Perspectives

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.

The Ninth Circuit Court of Appeals recently clarified that a named plaintiff gives up his or her right to represent a class if, in an individual settlement, he or she does not carve out from the settlement a concrete financial interest in the putative class action.  In so holding, the court explained that it was not enough for a plaintiff to generically carve out “class claims,” without identifying a more specific financial stake that would remain in the outcome of the class claims.

Due to the novel coronavirus (COVID-19), many San Francisco businesses have closed in order to contain the spread of the pandemic, resulting in declining revenues and widespread business interruption.  These economic conditions have led to employee layoffs across San Francisco.  As San Francisco employers work to restore their business operations in the wake of COVID-19, they should be aware of new rules that may affect how they rebuild their workforce.

On June 12, 2020, the D.C. Circuit vacated a component of an NLRB decision that expanded employee rights under NLRB v. J. Weingarten. The D.C. Circuit rejected the NLRB’s determination that a mere statement of fact constituted an employee’s requests for union representation.

In a dispute between Circus Circus Casinos, Inc. (the “Employer”) and an employee, the Employer, pursuant to OSHA regulations and internal policies, required the employee to submit to a medical examination prior to participating in a fitting process for necessary equipment, to ensure the equipment would not jeopardize the employee’s safety. The employee refused to take the medical examination and returned to work. The Employer suspended the employee, pending an investigation into the employee’s refusal to take the mandatory medical examination. At the investigatory interview, the employee stated, “I called the union three times [and] nobody showed up, I’m here without representation.” The Employer proceeded with the interview, which culminated in the employee’s termination.

An employer’s obligations under the Fair Credit Reporting Act (“FCRA”) are triggered when it obtains a “consumer report” from a “consumer reporting agency” for use in making an employment decision. A federal court in the Middle District of Florida is set to rule on a summary judgment motion clarifying whether a business that transmits public records unaltered to a prospective employer is a “consumer reporting agency”.