Hunton Employment & Labor Perspectives

The United States Supreme Court has agreed to take a closer look at the enforceability of arbitration agreements that bar representative claims brought under PAGA, a California law that allows individual employees to police labor code violations.

On November 15, 2021, the U.S. Supreme Court agreed to hear Robyn Morgan v. Sundance, Inc. (No. 21-326), a lawsuit from a fast-food worker who asserts that her employer waived its right to compel arbitration by engaging in litigation conduct inconsistent with its purported contractual right to arbitration.  By granting review, the Court is poised to resolve a circuit split as to whether a party must prove prejudice when arguing that the other party waived its right to arbitration by acting in a manner inconsistent with the arbitration agreement.

On December 6, 2021, New York City Mayor Bill de Blasio surprised employers by announcing on MSNBC’s “Morning Joe” that, starting December 27, NYC will mandate vaccines for all private-sector workers.  The mandate is expected to affect around 184,000 employers.

New York Governor Kathy Hochul has signed S.B. 4394, an amendment of Section 740 to the New York Labor Law that dramatically expands safeguards against employer whistleblower retaliation. The new law expands protected activity that entitles an employee to whistleblower protection, the categories of covered workers protected by the statute, and the definition of prohibited retaliatory actions, among other changes.  The new law takes effect on January 26, 2022. Some of the key provisions that New York employers should carefully review are listed below.

On November 10, 2021, three federal agencies tasked with enforcing workplace laws announced a joint initiative to combat retaliation in the workplace.  As a refresher, the EEOC protects a worker’s right under Title VII and other non-discrimination laws to enjoy a workplace free from harassment and discrimination.  The DOL enforces federal labor standards per the Fair Labor Standards Act, as well as health and safety regulations through OSHA.  The NLRB generally protects a worker’s right to organize to improve working conditions, among other rights guaranteed by National Labor Relations Act.

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).

A California appellate court recently upended a representative PAGA and class action settlement because the named plaintiff did not exhaust administrative remedies under PAGA because he failed to identify each separate theory of liability.

Employers with 100 or more employees must implement mandatory vaccination policies by early December under the Emergency Temporary Standard released by OSHA.

Last week, the EEOC issued new guidance on how to apply anti-discrimination laws to an applicant or employee’s request for a religious exemption from an employer’s COVID-19 vaccination requirement.

Federal contractors can make their own determinations on vaccination exemptions and do not need to terminate employees who refuse vaccination, according to new guidance from the Biden Administration.