Hunton Employment & Labor Perspectives

As originally reported in the American Bar Association’s Summer 2020 Labor & Employment Newsletter, due to the outbreak of COVID-19 and the inherent risks in holding large gatherings of people, the prospect of mail ballot elections has recently received considerable national attention. Typically, this attention is focused on how mail ballot elections might affect voter turnout or election results in state and federal elections and whether it might benefit one party over the other. So far, state and federal elections have generally continued to be held with inperson voting occurring at polling places, albeit with new safety measures in place.

For decades, most federal courts have held the view that private settlements of Fair Labor Standards Act (FLSA) claims are unenforceable unless they are approved by the Department of Labor or a court.  However, as we have reported in prior posts, some federal courts have recently begun to challenge this long-held view and have taken a more flexible approach that treats FLSA settlements no differently than settlements or releases involving other employment law claims.  In the recent decision of Stuntz v. Lion Elastomers, L.L.C., the Fifth Circuit Court of Appeals continued that trend and held that a union’s private settlement of FLSA claims on behalf of bargaining unit employees precludes individual bargaining unit employees from later bringing their own FLSA claims.

A proposed rule  published by the Equal Employment Opportunity Commission (“EEOC”) on October 9, 2020 (the “Proposed Rule”) offers the possibility of expanded information-sharing with respondents/employers in connection with the agency’s conciliation efforts.  The proposed expanded disclosures may enhance the value of conciliation to those parties.

When the EEOC makes a finding that there is reasonable cause to believe discrimination occurred based on a charge filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (“Title VII”), it must offer the employer an opportunity to resolve the dispute through the “informal methods of conference, conciliation and persuasion.”  42 U.S.C. § 2000e-5(b). The agency may not commence a civil action against an employer unless it is unable to secure satisfactory remedies through the conciliation process.  42 U.S.C. § 2000e-5(f).  According to the Proposed Rule, approximately one-third of employers who receive a reasonable cause finding decline to participate in conciliation, and only 41.2% of conciliations between fiscal years 2016 and 2019 were successful. The Proposed Rule characterizes this as a “widespread rejection” of the conciliation process.

HuntonAK’s Labor and Employment practice has been recognized as nationwide leaders by Benchmark Litigation’s 2020 Labor and Employment guide. The Labor and Employment Team was recognized as a Tier 2 law firm nationwide and recommended in several individual jurisdictions.

Twenty individual team lawyers were also acknowledged.

The U.S. Department of Labor (“DOL”) recently released a proposed rule seeking to clarify independent contractor vs. employee status under the Fair Labor Standards Act (“FLSA”).   The proposed rule seeks to simplify the “economic realities” test currently applied by federal courts in various forms.  “The Department’s proposal aims to bring clarity and consistency to the determination of who’s an independent contractor under the Fair Labor Standards Act,” Secretary of Labor Eugene Scalia explained in the DOL's news release.  “Once finalized, it will make it easier to identify employees covered by the Act, while respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being an independent contractor.”

Last month, the United States District Court for the Southern District of New York invalidated portions of the Department of Labor’s Final Rule on joint employment, holding that parts of the Final Rule conflicted with the statutory language of the FLSA and chiding the DOL for failing to adequately explain why the Final Rule departed from the DOL’s own prior interpretations.

Nationwide, 36 states and over 150 municipalities have adopted “ban the box” laws that prohibit employers from asking applicants about their conviction or arrest records on their initial applications.  This article provides updates on recent changes and updates in Hawaii, California, and St. Louis, Missouri.

A bill recently signed into law in California will require private employers to submit annual “pay data reports” to the Department of Fair Employment and Housing (“DFEH”) beginning in March 2021. The California law implements a previously announced program rolled back by the Trump administration to expand federal reporting requirements to include employee pay data by race, gender, and ethnicity.

Beginning in January, an expanded California leave law will require employers with as few as five employees to provide up to 12 weeks of unpaid medical and family leave each year.  For larger employers also covered by the FMLA, the California leave may be in addition to the 12 weeks of leave that employers already must provide under federal law, for a potential total of up to six-months of leave.

Please join Hunton Andrews Kurth LLP for a complimentary webinar on

New Tech For Hiring and Monitoring Employees:
Employment Law Compliance, Risks and HR Challenges
TOP TIPS FOR EMPLOYERS

Wednesday, October 7, 2020
2:00 pm–3:00 pm ET  / 1:00 pm–2:00 pm CT / 11:00 am–12:00 pm PT

This webinar is appropriate for labor and employment in-house counsel, compliance officers, and executives and professionals in legal and human resources departments.

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