Hunton Employment & Labor Perspectives

In a bipartisan vote, Congress passed a new law poised to end employers’ ability to require employees to arbitrate claims for sexual harassment or sexual assault through a pre-dispute arbitration agreement.  This new law is the latest in an ongoing series of state and federal laws inspired by the #MeToo movement, and the most significant federal legislation involving the issue of arbitration in recent years.

The California Supreme Court has clarified that state whistleblower retaliation claims should not be evaluated under the McDonnell Douglas test, but rather under the test adopted by the California legislature in 2003, thus clarifying decades of confusion among the courts.

Lost in the weeds of recent COVID-19 news is the increasing number of states and localities that have legalized medicinal and recreational use of marijuana.  Such legalization brings with it varying degrees of worker protections and employer obligations.  Philadelphia, PA and the state of Montana are two of the latest jurisdictions to add their names to the sprouting list of jurisdictions that protect not only medical use, but also recreational use of marijuana.  These protections will undoubtedly usher in a new wave of test cases and compliance questions, particularly as many workplaces shift to remote models.

On February 9, 2022, California Governor Gavin Newsom signed into law Senate Bill 114, which reestablishes the state’s COVID-19 supplemental paid sick leave requirements. Employers will not be able to simply dust off their 2021 policies and reimplement them, however, because the 2022 law contains some important changes from prior laws.

On January 25, 2022, OSHA withdrew the COVID-19 vaccination and testing Emergency Temporary Standard (“ETS”), ending the litigation regarding the OSHA vaccine mandate.

HuntonAK Labor and Employment Partners Julia Trankiem and Roland Juarez were selected as 2022 “Minority Leaders of Influence: Attorneys” by the Los Angeles Business Journal.  This year’s selection marks Julia and Roland’s third appearance on the LABJ list!

The Department of Labor Wage and Hour Division and the National Labor Relations Board released a Memo of Understanding announcing that the two agencies will be collaborating “to strengthen the agencies’ partnership through greater coordination in information sharing, joint investigations and enforcement activity, training, education, and outreach.” The MOU took effect upon both agencies’ approval in early December and will remain in effect for five years.

Following enactment of a similar law in Colorado in 2021, the New York City Council passed a bill on December 15, 2021 amending New York City’s Human Rights Law to require New York City employers to disclose the salary range of open positions in all advertised job postings. Mayor Eric Adams had until January 14, 2022 to veto the bill, but declined to do so, which means the law will take effect on May 15, 2022. The implications for New York City employers are far reaching.

SB 606, which took effect January 1, 2022, greatly increases the California Division of Occupational Safety and Health’s (“Cal/OSHA’s”) enforcement powers by creating two new violation categories – “enterprise wide” and “egregious” violations.

On September 9, 2021, the Fifth Circuit issued a 12-6 opinion in Hewitt v. Helix Energy Solutions Group, Inc., 15 F.4th 289 (5th Cir. 2021) that clarified the requirements for day rate workers to fall within one of the FLSA’s exemptions from overtime payment.  This ruling was hotly-contested because it made clear that employers must take additional steps to properly classify their day rate workers as exempt employees, even when those employees clearly exceed the financial threshold of the highly compensated exemption.  Many expect the decision to substantially affect the course of day rate FLSA litigation in the Fifth Circuit, especially misclassification disputes within the energy industry.