Hunton Employment & Labor Perspectives

Last month, the Seventh Circuit Court of Appeals rejected a proposed class of thirty-seven employees for failure to satisfy Federal Rule of Civil Procedure 23’s numerosity requirement.

“Much ink has been spilled” over the requirements of Rule 23, the Seventh Circuit noted.  But only a small share of those cases concern the numerosity requirement.  Most opinions deal with commonality or typicality.  Recognizing this paucity, the court took occasion to outline the parameters of the numerosity factor. The resulting opinion is a useful guide to parties engaged in smaller class actions or class actions where the commonality or typicality requirements may only apply to a smaller group of workers.

For over 30 years, most district courts throughout the country have used a two-step conditional certification process to govern certification of collective actions under the Fair Labor Standards Act (FLSA).  But in its recent and game-changing opinion, Swales v. KLLM Transport Services, LLC, the Fifth Circuit rejected that two-step process and laid out a stricter framework for FLSA collective actions.

HuntonAK Labor and Employment Partners Julia Trankiem and Roland Juarez were selected as 2021 “Minority Leaders of Influence: Attorneys” by the Los Angeles Business Journal.

The LABJ recognizes the professional achievements of community business leaders of influence by highlighting their milestones and notable contributions to the Los Angeles business community.

Julia and Roland were both recently recognized as 2020 California Labor and Employment Stars by Benchmark Litigation.

Read the Firm press release for additional information.

Congratulations!

During the 2020 legislative session, Virginia passed several important employment bills. Perhaps none is more consequential than H.B. 582. Effective as of May 21, 2021, it permits the governing bodies of Virginia cities, towns, counties, and school boards to adopt a local resolution or ordinance authorizing collective bargaining and recognizing labor unions. The bill provides no guidance on how to create and implement a union recognition and bargaining process, leaving such decisions to covered localities. Consequently, the burden to fill in the gaps will fall to local ...

Please join Hunton Andrews Kurth LLP for a complimentary webinar:

New Year, New Laws: An Overview of California's New Laws Impacting Employers in 2021

Tuesday, January 26, 2020
3:00 pm–4:00 pm ET
2:00 pm–3:00 pm CT
12:00 pm–1:00 pm PT

Read more and register here

Since the outset of the COVID-19 pandemic, the employment law landscape has continued to change at a rapid pace.  This includes recent changes to federal, state, and local leave requirements for COVID-19 related sick leave.

Under the Families First Coronavirus Response Act (FFCRA), employers with fewer than 500 employees were required to provide paid sick leave and expanded family and medical leave effective April 1, 2020.  The FFCRA leave requirements expired on December 31, 2020.

In California, the requirement to provide statewide supplemental paid sick leave for COVID-19 related reasons also expired on December 31, 2020.  However, many localities continue to maintain COVID-19 sick leave requirements.  These local laws were enacted to cover employers with 500 or more employees that were not required to provide paid sick leave benefits under the FFCRA and to provide up to 80 hours of sick leave for covered employees.

Ten U.S. senators are asking the U.S. Equal Employment Opportunity Commission to hone in on employers’ use of artificial intelligence (“AI”), machine-learning, and other hiring technologies that may result in discrimination.

The group of senators—Michael Bennet (D-CO), Cory Booker (D-NJ), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), Chris Coons (D-DE), Ron Wyden (D-OR), Tina Smith (D-MN), Chris Van Hollen (D-MD), and Jeff Merkley (D-OR)—jointly penned a December 8, 2020 letter to Chair Janet Dhillon. The letter urges that EEOC is responsible for combatting discrimination resulting from the use of hiring and other employment technologies. The senators voice concern about a number of hiring technologies, including:

• “[T]ools used in the employee selection process to manage and screen candidates after they apply for a job”;
• “[N]ew modes of assessment, such as gamified assessments or video interviews that use machine-learning models to evaluate candidates”;
• “[G]eneral intelligence or personality tests”; and
• “[M]odern applicant tracking systems.”

In the last weeks of the Trump Administration, the Department of Labor (DOL) published its final rule for determining whether an individual is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The distinction between an employee and independent contractor is of critical importance because independent contractors are not entitled to the benefits of the FLSA, namely minimum wage and overtime.

With little forewarning to the regulated community, the California Division of Occupational Safety and Health (“Cal/OSHA”) passed a sweeping new standard requiring employers in the state to implement prescribed COVID-19 protections. On November 19, Cal/OSHA voted unanimously to pass the “Emergency COVID-19 Prevention Regulations” (the “Standard”) and on November 30, the Standard went into effect. As covered in our previous updates, the Standard obligates employers to, among other things, write and implement a COVID-19 Prevention Program, engage in contact tracing following any positive case that involved potential workplace exposure, require physical distancing and mask wearing and improve ventilation, and to report all “outbreaks” to the public health department.

On December 21, 2020 the NLRB adopted an ALJ’s determination that a union’s request for information about non-bargaining unit employees was relevant. One of the issues present in the case was whether a union’s request for information about non-bargaining unit employees sought relevant information. As discussed below, the NLRB upheld the ALJ’s determination that the information was relevant solely because the employer should have known the information was relevant based on the circumstances surrounding the request.