Hunton Employment & Labor Perspectives

Hunton Andrews Kurth is excited to announce the launch of Employee Benefits Academy, a monthly webinar series that provides training on all facets of employee benefits, including qualified retirement plans, health and welfare arrangements, fringe benefits, and more.

Employee Benefits Academy is a supplement to our popular monthly Executive Compensation Webinar Series, which focuses on the multi-disciplinary subjects surrounding executive compensation.

Free continuing education in the forms of CLE (certain states), CPE (TX), HRCI and SHRM credits will be provided.

 Join us for our inaugural webinar:

HuntonAK employment partner, Susan Wiltsie was recognized by National Law Journal as a 2020 DC Trailblazer. The inaugural list of Washington DC Trailblazers is a special supplement created to spotlight professionals who have made significant impact on their practice.

Susan’s practice dedication to OSHA compliance, workplace safety and pandemic response, along with her commitment to clients earned her the ranking as a Washington DC Trailblazer.

Susan was listed along with Washington DC Firm partner Torsten Kracht.

Read “Trailblazers” feature in The National Law ...

While most EEOC enforcement actions are related to individual complaints of discrimination and/or retaliation, so-called “pattern or practice” matters are those in which the EEOC attempts to show that an employer has systematically engaged in discriminatory activities. The Equal Employment Opportunity states on its website, “Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” To combat systemic discrimination, section 707(a) of Title VII of the Civil Rights Act of 1964 authorizes the EEOC to sue employers engaged in a pattern or practice of discrimination.

In a pending NLRB case, an employees’ rights advocacy group, the National Right to Work Legal Defense Foundation (“NRTW”), filed an amicus brief supporting poultry plant workers seeking to decertify their union,  the United Food and Commercial Workers Union (“UFCW”), even though there was a collective bargaining agreement in place between the UFCW and their employer. The facts of the case are complex. But, the issue presented in the amicus brief and reply from the union is simple: should the NLRB abolish the decades-old contract bar rule that prohibits an election to oust a union with a collective bargaining agreement in effect?

HuntonAK employment Counsel, Sharon Goodwyn was honored by Virginia Center for Inclusive Communities Tidewater Chapter as a 2020 Humanitarian Award winner.

The Humanitarian Award is presented to those individuals who have demonstrated a personal commitment to the promotion of respect and understanding among people of diverse racial, ethnic, and religious backgrounds. VCIC presents the Humanitarian Award to individuals in each of chapter locations: Lynchburg, Peninsula, Richmond, and Tidewater. All honorees must reside and/or work in one of those areas of Virginia to be recognized.

Last week, the Department of Labor (“DOL”) provided clarity regarding issues of remote work and remote learning.

First, the DOL issued guidance regarding employers’ obligation to track the work hours of employees who are working remotely due to COVID-19 or due to an already existing telework or remote work arrangement.

Three bills currently pending in the California legislature aim to codify presumptions for workers compensation purposes about the work-relatedness of COVID-19. Governor Newsom first addressed this issue in his May 6, 2020 Executive Order No. N-62-20 (“EO 62-20”), which expired on July 5, 2020.  That Executive Order created a rebuttable presumption that any “COVID-19-related illness” arose out of and in the course of the employment for workers compensation purposes, as long as the positive test or diagnosis came within fourteen days of the employee having worked, at an employer’s direction, in a workplace that was not the employee’s home or residence. The “COVID-19-related illness” (which term was undefined) must have been diagnosed by a licensed California physician, and confirmed by testing within thirty days of the diagnosis. EO 62-20 was not limited to first responders, health care workers or other essential workers, but applied broadly to all employees in the state. The broad scope of EO 62-20 may have been justified by its timing; it issued during a “shelter at home” period when it was easier to identify the dates of outside-the-home work.

This month, the Southern District of Florida declined to certify a nationwide class of Denny’s servers alleging the restaurant chain had violated the minimum wage and tip credit provisions of the Fair Labor Standards Act (FLSA) on the basis that the named plaintiff failed to provide enough evidence that the servers were similarly situated.

Plaintiff Lindsay Rafferty worked as a server at a Denny’s restaurant in Akron, Ohio from February 2012 through October 2018.  On November 13, 2019, Rafferty filed a lawsuit against Denny’s alleging that the restaurant paid its employee servers a sub-minimum hour wage under the tip credit provisions of the FLSA and that Denny’s required its servers to perform non-tipped “sidework.”

As most employers are well aware, the Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex national origin, age, disability or genetic information. After an individual submits a charge of discrimination to the EEOC—and if the parties cannot come to an agreement to settle the charge through the EEOC’s mediation process—the EEOC investigates the allegations to determine whether there is reasonable cause to believe that discrimination has occurred. Generally, the EEOC does not make a finding, and instead issues a “Dismissal and Notice of Rights” (more commonly known as a “right-to-sue” letter) notifying the charging party that they have 90 days to file a discrimination lawsuit, or their right to sue based on the charge will be lost.

On August 3, 2020, the United States District Court for the Southern District of New York struck down portions of the DOL’s Final Rule regarding who qualifies for COVID-19 emergency paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), collectively referred to at the Families First Coronavirus Response Act.

Of particular importance to employers, the Court invalidated two provisions of the DOL’s Final Rule pertaining to: (1) conditioning leave on the availability of work and (2) the need to obtain employer consent prior to taking leave on an intermittent basis.