Hunton Employment & Labor Perspectives

While COVID-19 may have hit the business community like a hurricane, whether the pandemic, in fact, qualifies for a natural disaster exception under the federal law requiring businesses to warn employees of impending layoffs, remains an open question.

This February, a federal judge paved the way for the Eleventh Circuit to weigh in on whether a class action can proceed against an employer who was forced to lay off employees due to COVID-19.  That case, Benson v. Enter. Leasing Co. of Orlando, LLC, is one of the first to look at the application of pandemic-related layoffs to the Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN Act”). Underscoring the case’s importance to the business community, the U.S. Chamber of Commerce has just filed an amicus or “friend of the court” brief asking the Eleventh Circuit to take up the case and provide “much-needed guidance” to other courts across the country.

Closures of schools and day care centers during the COVID-19 pandemic have put heightened focus on the child care challenges faced by working parents.  The California legislature is aiming to address these challenges by introducing a bill that, if passed, would require employers to provide subsidized backup child care benefits to employees. While this may help working parents, it also would place additional burdens on employers, many of whom are already over-taxed by the increased costs and depressed revenues caused by the pandemic.

Many employers use rounding methods to adjust the hours that an employee works to the nearest time increment, such as every five or ten minutes.  The California Supreme Court has ruled, however, that this rounding practice is impermissible at the meal period.  Equally as troubling for employers, the Court also held that time records showing a noncompliant meal period raise a “rebuttable presumption” of meal period violations.

In January 2021, New York City amended the Fair Chance Act to expand protections for both applicants and employees with criminal histories.  The amendments take effect July 29, 2021, adding additional protections for workers in the state.  Prior to the amendment, NYC’s Fair Chance Act prohibited employers from making an inquiry about an applicants’ criminal conviction records until after a conditional offer of employment is extended.  Then, an employer was required to balance a variety of factors to determine job-relatedness of the conviction.

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.

HuntonAK Labor and Employment Partners Bob Dumbacher and Kurt Powell have been recognized in the most recent publication of Georgia Super Lawyers 2021.

• Bob Dumbacher, Employment and Labor, Rising Star
• Kurt Powell, Employment and Labor

Super Lawyers acknowledges outstanding practice group lawyers “who have attained a high-degree of peer recognition and professional achievement.”

Bob and Kurt were both recently recognized by Benchmark Litigation as Labor and Employment Stars, Georgia, 2020.

Read the Firm press releases for information.

Congratulations!

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board (NLRB).

Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.  (Ohr may only serve as acting General Counsel for 40 days, per the National Labor Relations Act, unless the administration submits a nomination to the Senate.)  At least one employer has already sought the dismissal of an unfair labor practice charge arguing that Ohr lacks authority to prosecute the case because Robb was unlawfully removed prior to the expiration of his term.

In a recent post, we wrote about a final rule issued by the Department of Labor (DOL) during the last days of the Trump administration addressing the appropriate test for classifying independent contractors under the FLSA. In the post, we noted that the future of the rule was in question because it was not set to go into effect until March 8, 2021. This delayed implementation provided an opportunity for the incoming Biden administration to freeze or withdraw the rule.

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.

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 ...