Hunton Employment & Labor Perspectives

New York joins a handful of other states when its broad prohibition on employer inquiries into applicants’ prior wage or salary information takes place today, January 6, 2020.  As detailed in our previous alert on this issue, New York previously had expansive pay equity laws in effect for public employers, but the new law expands the prohibition to private employers throughout the state.

A Texas judge has ruled that Hunton Andrews Kurth is entitled to coverage from Great Northern Insurance Co., a unit of Chubb, Ltd. (“Chubb”), for losses its predecessor firm suffered when Hurricane Harvey closed its Houston office and disrupted business in 2017. The decision illustrates that law firms, like businesses in virtually every other economic sector, including the labor and employment industries, are susceptible to widespread damage caused by storms and other natural disasters.  The decision also stands as a reminder that businesses must be ready to enforce their right to receive the benefit of their insurance when a covered loss occurs.

Illinois joined the growing list of states to legalize marijuana as of January 1, 2020.  Employers with employees in Illinois should consider how the new law may affect their business, and review their policies to ensure compliance with the statute.

As an initial matter, state legalization will not affect employees in certain job positions.  The Illinois law states that corrections officers, law enforcement officers and several other public employees cannot use marijuana, even when they are off-duty.  In addition, employees with commercial drivers’ licenses subject to federal Department of Transportation regulations will remain subject to federal restrictions.

Earlier today, District Judge Kimberly J. Mueller of the United States District Court for the Eastern District of California, granted a temporary restraining order that temporarily prohibits the state of California from enforcing AB 51, a law that would prohibit companies in California from requiring arbitration agreements as a condition of employment.

You can read more about AB51 here and here.

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures.

The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015. Those changes effectively sped up the election process and cut down on employers’ ability to litigate many important legal issues prior to voting, putting employers at a disadvantage.

A recent California appellate court decision has held that a banquet hall’s “mandatory service charge” could, under the right circumstances, be a “gratuity” that must be paid to employees under California Labor Code § 351. In O’Grady v. Merchant Exchange Productions, the defendant-employer added on a percentage service charge for all banquet contracts for food and beverages. Some, but not all, of the service charge was distributed to managers who did not serve food or beverages at the banquet. Plaintiff brought a putative class action alleging that the defendant’s practice of distributing the service charge proceeds to non-managerial banquet staff violated California Labor Code § 351, which states that gratuities are the sole property of the employees, and the employer (including managers) may not take any portion of the gratuity. The trial court held as a matter of law that a service charge cannot be a tip or gratuity under § 351 and dismissed the case.

On December 6, 2019, a coalition of both national and state business organizations and trade associations filed a Complaint in the U.S. District Court for the Eastern District of California.  The lawsuit seeks both a preliminary and permanent injunction against implementation and enforcement of the recently enacted California law that makes it unlawful for California employers to require employees to sign arbitration agreements, under certain circumstances.

The competing interests of the business community and tipped workers continue to inform public policy decisions about the minimum wage.  We have previously written about increases in the minimum wage on the state, county and municipal level.  Most recently, the cities of Chicago and Denver tackled this issue and joined the many jurisdictions across the country to approve increases to their minimum wage.

Dollar General and the Equal Employment Opportunity Commission (“EEOC”) recently settled a six-year-old Title VII lawsuit.  The EEOC brought its race discrimination claim on behalf of a Charging Party and a class of Black job applicants, alleging that Dollar General’s use of criminal justice history information in the hiring process had a disparate impact on Black applicants.

In an October Advice Memorandum, the Office of the General Counsel for the NLRB (General Counsel) concluded that a union’s continued actions of unlawful insistence are not a refusal to bargain if bargaining negotiations have ceased.