Hunton Employment & Labor Perspectives

The Federal Trade Commission (FTC) voted on April 23 to approve a final rule banning most non-compete agreements between employers and their workers (Final Rule). The Final Rule is scheduled to go into effect 120 days after it is published in the Federal Register, which will likely occur in the next few weeks, though legal challenges may delay the Final Rule’s effective date and FTC enforcement actions.

On May 19, 2023, the United States Court of Appeals for the Sixth Circuit became the second circuit court to reject a familiar two-step certification procedure for collective actions under the Fair Labor Standards Act (FLSA).  In Clark v. A&L Home Care and Training Center, LLC, the court held that FLSA plaintiffs who seek to represent other employees in a collective action must demonstrate a “strong likelihood” that other employees they seek to represent are “similarly situated” to the lead plaintiffs.  

The National Labor Relations Board’s (NLRB or the “Board”) Office of General Counsel (“GC”) released an internal advice memorandum on February 27, 2023, which indicates that the NLRB will seek to enforce the National Labor Relations Act (NLRA or the “Act”) against employers that allegedly retaliate against employees for having workplace discussions about racism. The memorandum—which concerned employment actions the Kaiser Permanente Bernard J. Tyson School of Medicine, Inc. (the “Tyson Medical School”) took with respect to a faculty member/physician following various discussions about race in the workplace—sets forth an expansive interpretation of conduct that constitutes protected concerted activity under Section 7 of the Act so as to include general discussions “working to end systemic racism, including its impact at the [e]mployer.”

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 Department of Justice (DOJ) announced earlier this month that it will begin the rulemaking process related to “Nondiscrimination on the Basis of Disability:  Accessibility of Web Information and Services of State and Local Governments.” 

On April 9, 2022, Maryland became just the tenth state (in addition to the District of Columbia) to enact a paid family and medical leave law that covers private-sector workers, after overriding Governor Larry Hogan’s (R) veto.

President Joe Biden signed a new executive order on July 9, called the Executive Order on Promoting Competition in the American Economy, aimed at cracking down on monopolies in Big Tech, labor and other sectors.  According to a Fact Sheet released by the White House, the Executive Order includes 72 initiatives the President wants over a dozen federal agencies to undertake for the stated purpose of promoting competition throughout the U.S. economy.

On April 7, 2021, a split panel of the U.S. Court of Appeals for the Eleventh Circuit (the “11th Circuit”) issued its highly-anticipated decision in Gil v. Winn-Dixie Stores, reversing a 2017 judgment against Winn-Dixie that found that the grocery chain’s website violated Title III of the Americans with Disabilities Act (“ADA”).  The 11th Circuit reversed and remanded the case for further proceedings, in part, based on its finding that websites are not a “public accommodation” under the ADA.

Title III of the Americans with Disabilities Act of 1990 (“Title III”) prohibits discrimination on the basis of disability in public accommodations, requiring that individuals with a disability be offered the “full and equal enjoyment . . . of any place of public accommodation.”  42 U.S.C. § 12182(a).  As we previously discussed, the 30-year-old statute does not directly address whether “places of public accommodation” include websites, mobile applications, and other emerging web-based applications and technologies and, therefore, does not provide a standard for ensuring accessibility for web-based accommodations.

Last month, Washington, D.C. Mayor Muriel Bowser signed the Ban On Non-Compete Agreements Amendment Act of 2020 (“the Act”), which becomes effective next week.  This law is a statutory ban on non-compete agreements that has the strength of similar bans in California, North Dakota, and Oklahoma.

The Act applies to all D.C. private employers and applies broadly to most employees who perform work in D.C. or whom a prospective employer reasonably anticipates will perform work in D.C.  The law does not have a minimum salary threshold.  Under the Act, employers are prohibited from ...

The California Occupational Safety and Health Standards Board (“Cal/OSHA”) voted on November 19 to implement a stringent new standard for employers to follow when implementing COVID-19 protections in the state.

The state’s rulemaking agency for workplace safety voted unanimously (6 to 0) to pass the “Emergency COVID-19 Prevention Regulations” (the “Standard”), which is expected to go into effect within 10 days (assuming the State’s Office of Administrative Law adopts Cal/OSHA’s regulation).

Nationwide, 36 states and over 150 municipalities have adopted “ban the box” laws that prohibit employers from asking applicants about their conviction or arrest records on their initial applications.  This article provides updates on recent changes and updates in Hawaii, California, and St. Louis, Missouri.

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.

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.

On December 17, 2019, the Fair Chance to Compete for Jobs Act of 2019 (the “Fair Chance Act”) was signed by the President as an amendment to the National Defense Authorization Act.  This federal “ban-the-box” law proscribes federal agencies and contractors from asking about a job applicant’s criminal history until after they make a conditional offer of employment.  For federal contractors, the law only extends to positions related to a federal contract.  The Fair Chance Act will go into effect on December 17, 2021.  The Office of Personnel Management and General Services Administration will issue implementing regulations before the law goes into effect.

The U.S. Supreme Court declined to hear a case on October 7 that likely would have clarified the scope of Title III of the Americans with Disabilities Act (the “ADA”) related to the operation of virtual platforms like websites and applications by private businesses.

Yesterday, Governor Cuomo signed the last of several bills that massively overhauls New York State’s discrimination and harassment laws.  The changes, some of which are effective immediately, are explained in more detail here.

The main takeaways are as follows:

The House of Representatives passed the Equality Act (H.R. 5 – 116th Congress) this past Friday, May 17, mostly along party lines – the resolution passed with a 236 to 173 vote, with only 8 of the “aye” votes cast by Republicans.  The Equality Act would amend various civil rights laws, including the Civil Rights Act of 1964 (“Civil Rights Act”), the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and other laws regarding employment with the federal government, to explicitly include sexual orientation and gender identity as protected characteristics.

As we discussed in a previous post , the courts, the Congress, and the Department of Justice (the “DoJ”) continue to grapple with the scope of Title III of the Americans with Disabilities Act (the “ADA”) as it relates to the accessibility of private businesses’ websites for disabled people.  A decision by one state trial court in California seems to adopt a more strict reading of the definition of “public accommodation” than previous cases in California and in the Ninth Circuit Court of Appeals (which includes the federal courts in California) on the subject, which further demonstrates the difficulty that many courts, including this one, are having with these ADA website accessibility cases.

The Scope of the Issue

The Americans with Disabilities Act (the “ADA”) has been the source of a tremendous amount of litigation since President George H.W. Bush signed it into law in 1990.  Over the past few years, Plaintiffs’ counsel have developed a cottage industry of sorts by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.”  42 U.S.C. § 12182(a).  While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that:  (1) private company websites qualify as places of public accommodation; and, (2) websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access.   Plaintiffs have also challenged the accessibility of mobile applications and online job application interfaces.