Hunton Employment & Labor Perspectives

HuntonAK Labor and Employment partner and practice group co-chair Emily Burkhardt Vicente was recognized at the Los Angeles Business Journal’s 2021 Women’s Leadership Awards. Emily was honored as a Champion of Women nominee. The award recognizes individuals whose day to day efforts are dedicated to educating and empowering women in business.

On June 12, 2021, a federal judge sitting in the Southern District of Texas held that Houston Methodist Hospital could require its employees to receive the COVID-19 vaccine, dismissing the lawsuit brought by 117 plaintiffs who protested the requirement.  See Bridges v. Houston Methodist Hospital, No. 4:21-cv-01774 (S.D. Tex. June 12, 2021).  This opinion marks the first federal ruling on the topic of vaccine mandates, serving as an early indication of how courts may respond to the legal considerations involved in employers’ attempts to have their employees return safely to the office amidst the COVID-19 pandemic.

Employers remember the seminal Supreme Court decision in Bostock v. Clayton County, Ga., where the Court held that Title VII’s “because of sex” protections extend to sexual orientation and transgender status.  (See our previous blog entry.)   Now, on the one-year anniversary of that influential case, the EEOC has issued guidance to clarify whether employers can segregate bathrooms by gender or sex.  That question was conspicuously left unresolved in Bostock.

HuntonAK Labor and Employment associate Alyson Brown was recently named to The National Black Lawyers Top 40 Under 40 in Virginia, Class of 2021.

Beginning June 15, 2021, Governor Newsom moved forward with his plan to lift public health restrictions on businesses, including capacity limitations, physical distancing, and face coverings.  In response, Cal/OSHA also has issued new workplace standards for COVID-19 prevention.

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.

Since the Supreme Court’s 2018 Epic Systems ruling, employers increasingly rely on arbitration agreements for more efficient resolution of both single plaintiff and class action claims.  Prolonged judicial review of arbitration awards, however, can dilute that efficiency.  As a result, some employers include waivers of judicial review, in whole or in part, in their arbitration agreements.

But are such waivers permissible?  In a recent decision, the Fourth Circuit said “yes” as it relates to appellate review.

We are pleased to announce that the Labor and Employment team at Hunton Andrews Kurth LLP has been recognized as practice leaders in Immigration and Labor and Employment Disputes (Including Collective Actions): Defense by The Legal 500. Fourteen individual lawyers on HuntonAK’s Labor and Employment and Immigration Team also were acknowledged.

While California inches closer to the state’s June 15 target to lift restrictions and reopen the economy, California employers will have to wait for guidance from CalOSHA on the standards that will govern COVID-19 workplace safety.  For now, CalOSHA’s Emergency Temporary Standards released in November 2020 will remain in place and employers will need to continue to be mindful of these more restrictive guidelines, despite loosening of other state restrictions.

On June 10, 2021, fifteen months into the COVID-19 pandemic, the United States Labor Department’s Occupational Safety and Health Administration (“OSHA”) has issued its first ‘emergency temporary standard’ (“ETS”) governing the impact of COVID-19 on health care workers.

The ETS broadly requires healthcare employers to conduct an internal safety assessment and develop a safety plan, which must be in writing for all employers with more than 10 employees. The ETS further delineates requirements relating to patient screening and management, health precautions, masks and PPE,  aerosol-generating procedures, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening, vaccination, employee training, anti-retaliation, record-keeping, reporting occurrences of COVID-19 transmission, and paying employees for periods of quarantine. Consistent with recent CDC guidance, the ETS also contains carve outs on employee mask-wearing requirements where employees are all vaccinated or where employees are given reasonable accommodations exempting them from mask-wearing and/or vaccination requirements.

The legal landscape for defining “employers,” “employees,” and “independent contractors” can be quite dynamic, as this past year has illustrated. In January 2021, the Department of Labor issued an employer-friendly independent contractor rule that would have departed from the agency’s typical balancing test, but it formally withdrew this rule in early May with the change in administration. The DOL’s independent contractor rule is intended to provide guidance to employers when determining whether a worker is an employee or an independent contractor. For employers, this is an important distinction because the FLSA’s overtime and minimum wage protections apply only to employees, not independent contractors. Because courts and employers sometimes struggle to find this line using the economic realities test and its iterations, the Trump-era independent contractor rule aimed to provide a clearer definition of “employee,” as opposed to “contractor.” The DOL has not yet proposed a new independent contractor test, but employers should be mindful that the Biden administration may potentially announce a new rule on this topic.

HuntonAK labor and employment partner, Amber Rogers has been named to Law360’s Employment Rising Stars for 2021.

Amber was selected out of 1,400 applicants, practice area winners were selected based on their career accomplishments in their respective disciplines. Law360’s Rising Stars is an annual compilation of lawyers under the age of 40 whose legal accomplishments transcend their age.

Since the beginning of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has frequently released guidance on the many employment law compliance issues that have arisen as a result of the pandemic. The latest guidance issued by the EEOC concerns whether employers may implement vaccine incentive programs to encourage employees to get vaccinated without running afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Discrimination Act (GINA). In its May 28, 2021 Guidance, the EEOC advised employees that vaccine incentive programs are lawful under the ADA and GINA in certain circumstances.