Hunton Employment & Labor Perspectives

The Court of Appeals for the D.C. Circuit has recently revived a portion of an election rule promulgated by the NLRB during the Trump administration.  In 2019, the NLRB promulgated an election rule which modified several “quickie” election procedures established by the NLRB during the Obama administration in 2014.  The 2014 Rule sped up the union election timeframe, and the 2019 Rule aimed to address criticisms that the timeframe was too short a time in which to meet the various new obligations triggered by the filing of a union representation petition while also adequately preparing for the representation hearing. The AFL-CIO sued in 2020 to block the 2019 Rule.

HuntonAK Labor and Employment partner Emily Burkhardt Vicente was named as a 2022 “Go-To Thought Leader” by the National Law Review.

Among the new employment laws in effect this new year is the expansion of the California Fair Employment and Housing Act (“FEHA”) to include “reproductive health decision-making” in the list of classifications protected by the FEHA.  Accordingly, the FEHA now expressly prohibits discrimination, harassment, and retaliation based on employees’ reproductive health-decision-making.  The FEHA also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decision-making.

As part of the bill funding the federal government, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act). These relatively unknown laws are important pieces of legislation carrying with them significant changes to the workplace for pregnant employees.

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) that would “provide that it is an unfair method of competition – and therefore a violation of Section 5 [of the FTC Act] – for an employer to enter into or attempt to enter into a non-compete clause with a worker; [or to] maintain with a worker a non-compete clause . . .”  If this rule becomes final, it would effectively prohibit employers from entering into non-compete agreements—as broadly defined by the proposed rule—with their workers. 

The Occupational Safety and Health Administration is finally poised to implement a permanent COVID-19 safety standard for healthcare employers, nearly three years after the pandemic first began in the United States.

Please join Hunton Andrews Kurth LLP for a complimentary webinar:

Pot, Pay Scales, Paid Family Leave, Plus More: New California Employment Laws for 2023

Tuesday, January 10, 2023
3:00–4:00 pm ET
2:00–3:00 pm CT
12:00–1:00 pm PT

HuntonAK Labor and Employment partner Amber Rogers was named to the 2023 Texas 100. The Texas 100 is an annual list created through the combined efforts of the Austin, Dallas, Houston, and San Antonio Business Journals.

On November 22, 2022, the U.S. Department of Labor (“DOL”) announced a final rule (the “2022 Final Rule”) that allows plan fiduciaries to consider climate change and other environmental, social, and governance (“ESG”) factors when selecting retirement investments and exercising shareholder rights, such as proxy voting, for ERISA-governed plans.[1]

In January 2021, the Ninth Circuit upheld a 2018 ruling by the Federal Motor Carrier Safety Administration (“FMCSA”), which found that federal law preempts California state meal and rest break laws as applied to drivers of property-carrying commercial motor vehicles.  A few months later, the United States Supreme Court denied a petition challenging the Ninth Circuit’s decision.  We previously wrote about the Ninth Circuit’s ruling, and the Supreme Court’s denial, in a post that you can read here.

On December 16, 2022, a National Labor Relations Board (Board) majority (Members Kaplan and Ring) issued a Decision and Order holding that an employer’s conduct did not warrant setting aside a union election where the employer failed to strictly adhere to regulations requiring employers to provide unions a voter list comprised of employee names and contact information (commonly known as an Excelsior list).