Hunton Employment & Labor Perspectives

National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo recently issued a memorandum announcing her broad opposition to non-compete agreements.  In GC Memo 23-08, Abruzzo set forth her belief that, “the proffer, maintenance, and enforcement of [non-compete] agreements violate Section 8(a)(1) of the Act.”  According to Abruzzo, overbroad non-compete agreements chill employees’ abilities to exercise their Section 7 rights because the provisions interfere with employees' ability to:

• Concertedly threaten to resign to secure better working ...

The U.S. Supreme Court’s landmark 2020 decision granting anti-discrimination protections for LGBTQ+ workers left room for future challenges by religious employers.

Webinar: Is DEI Dead? What the Supreme Court’s Harvard/UNC Affirmative Action Decisions Mean For DEI Initiatives

Pending legislation in New York (Senate Bill S3100A/Assembly Bill A1278B) will result in the sharp curtailment of post-employment non-competes if passed into law.  This development is concerning to many employers operating in New York or employing individuals currently living there, but for the moment, it is far from clear whether the current (or any) form of the bill may be passed into law.

The U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College decided that the race-based admissions programs at Harvard College and the University of North Carolina (the “Schools”) violated the Equal Protection Clause of the Fourteenth Amendment. While the Court answered the question for publicly funded schools, it is an open question whether, and how, the Court’s decision will impact affirmative action and diversity programs for private employers, as discussed in more detail below.

While the intent of Title III of the Americans with Disabilities Act was to improve equality of access to goods and services offered by places of public accommodation, the Plaintiffs’ bar has seized on the law to recruit serial litigants—also known as “professional plaintiffs” or “paid testers”—to repeatedly sue businesses for minor, technical violations without actually seeking to purchase anything at all. 

On May 31, 2023, the California Senate passed Senate Bill (“SB”) 553 creating new workplace violence prevention standards in California.  Under the Bill, employers are mandated to develop and maintain written prevention plans tailored to their specific workplaces.  The Bill is next set to go through policy committees in the State Assembly.  If approved by the Assembly and signed into law by the governor, the measure would likely go into effect next year.  However, several policymakers have expressed concern regarding the effect of the Bill as written; thus, it is far from assured that the legislation will be approved without changes.

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 by the 2023 Legal 500 US Guide. Thirteen individual lawyers on HuntonAK’s Labor and Employment and Immigration Team also were acknowledged.

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees.

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.