Hunton Employment & Labor Perspectives

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.

A small but growing number of employees are asking for cryptocurrency as a form of compensation.  Whether a substitute for wages or as part of an incentive package, offering cryptocurrency as compensation has become a way for some companies to differentiate themselves from others.  In a competitive labor market, this desire to provide innovative forms of compensation is understandable.  But any company thinking about cryptocurrency needs to be aware of the risks involved, including regulatory uncertainties and market volatility.

Of the many class action-related decisions from the last year, two courts issued holdings that are particularly relevant to defending against class action lawsuits (particularly in the context of the Fair Credit Reporting Act (FCRA)).

As we previously reported, in late 2020, the District of Columbia’s Council passed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), but more than a year later, employers and employees may still legally enter into binding covenants not to compete.  So what happened, and what’s next for non-competes in the District?

On October 4, 2021, the United States Supreme Court denied certiorari on a petition challenging the Ninth Circuit’s ruling that California’s strict meal and rest period rules do not apply to commercial truck drivers engaged in interstate commerce.  The Court’s denial of the petition leaves in place a decision that came as a welcome sigh of relief for employers in the trucking industry.

On March 14, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document providing guidance when it comes to claims of discrimination against employees and applicants with caregiving responsibilities in connection with the COVID-19 pandemic (“Guidelines”).  The Guidelines, entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws”, examine discrimination against employees and applicants based on pandemic caregiving responsibilities, noting that such discrimination may violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA) or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or other federal laws.

The Worker Adjustment and Retraining Notification (“WARN”) Act requires employers to give employees at least 60 days’ notice when a “mass layoff” is about to occur at a “single site of employment,” which is typically a single location or a group of contiguous work locations.  Courts are beginning to confront the question of what constitutes a “single site of employment” under the WARN Act for employees working remotely, and how remote work policies impact class certification considerations.  Given the prevalence of remote work during the pandemic and the likely continuation of such work arrangements, these decisions are of particular importance to employers considering mass layoffs or facing class actions based on the application of remote work policies or practices.

The National Labor Relations Board (“NLRB” or “Board”) recently indicated an openness to revisiting the independent contractor standard employed by the Board when assessing whether individuals are covered under the National Labor Relations Act (“Act”).

The National Labor Relations Board indicated in January that it may reconsider its legal standard for assessing whether employer work rules violate the National Labor Relations Act, and invited amicus briefs on the subject.  Several business groups, including the Chamber of Commerce of the United States of America, filed briefs on March 8, 2022 urging the Board to maintain its existing standard under The Boeing Co., 365 NLRB No. 154 (2017).

Over the course of the pandemic, California employers have contended with rapidly changing rules on workplace safety. Mask requirements in the workplace have been an especially evolving area, where the rules have not only varied between the federal, state, and local jurisdictions, but were often inconsistent across different state agencies. California has now taken steps, however, to align the state’s new mask mandates for the public as well as in the workplace.