Hunton Employment & Labor Perspectives

On June 12, 2020, the D.C. Circuit vacated a component of an NLRB decision that expanded employee rights under NLRB v. J. Weingarten. The D.C. Circuit rejected the NLRB’s determination that a mere statement of fact constituted an employee’s requests for union representation.

In a dispute between Circus Circus Casinos, Inc. (the “Employer”) and an employee, the Employer, pursuant to OSHA regulations and internal policies, required the employee to submit to a medical examination prior to participating in a fitting process for necessary equipment, to ensure the equipment would not jeopardize the employee’s safety. The employee refused to take the medical examination and returned to work. The Employer suspended the employee, pending an investigation into the employee’s refusal to take the mandatory medical examination. At the investigatory interview, the employee stated, “I called the union three times [and] nobody showed up, I’m here without representation.” The Employer proceeded with the interview, which culminated in the employee’s termination.

An employer’s obligations under the Fair Credit Reporting Act (“FCRA”) are triggered when it obtains a “consumer report” from a “consumer reporting agency” for use in making an employment decision. A federal court in the Middle District of Florida is set to rule on a summary judgment motion clarifying whether a business that transmits public records unaltered to a prospective employer is a “consumer reporting agency”.

The COVID-19 pandemic has exposed employers to an influx of novel employment law issues.  Many employers already have experienced an uptick in related internal complaints or litigation. Below we identify five particular employment law liabilities employers may be exposed to once the dust settles from the pandemic.

Wage and Hour Claims

The shift to telework during the coronavirus pandemic has forced many employers to set aside traditional tracking mechanisms that are used to determine when employees take breaks and clock off. As a result, employers may be vulnerable to employee claims that employers failed to provide and/or pay for all required meal periods, rest breaks, and overtime for remote and on-site employees. To proactively minimize potential wage and hour related claims, employers should ensure to the extent possible that employees are properly compensated for all hours worked. In addition, employers can minimize minimum wage violations by complying with applicable federal, state and local laws that may require employers to reimburse employees for certain expenses incurred in order to telework, such as cell phone, high-speed internet, or other equipment costs. Moreover, employers should consider encouraging managers to execute best supervisory practices in the telework environment, including setting clear expectations with employees, conducting regular check-ins, promptly addressing issues, and making other efforts to maintain clear communication.

A federal district court in Florida recently declined to conditionally certify a nationwide collective action brought under the Fair Labor Standards Act (“FLSA”) because the plaintiff did not show sufficient evidence that she was similarly situated to other restaurant managers who wanted to join.

We are pleased to announce that the Labor and Employment team at Hunton Andrews Kurth LLP has been recognized as practice leaders in Immigration and Labor and Employment Disputes (Including Collective Actions): Defense by The Legal 500. Eleven individual lawyers on HuntonAK’s Labor and Employment and Immigration Team also were acknowledged.

Originally published by SHRM, Jayde Brown and Amber Rogers discuss challenges employers may face when vacation scheduling conflicts arise once employees return to work.  Read more here.

In a 6-3 decision, the U.S. Supreme Court ruled today that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an employee’s sexual orientation and/or transgendered status.  Though Title VII does not expressly mention “sexual orientation” or “transgender,” the Court held that “homosexuality and transgender status are inextricably bound up with sex” and that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”—a protected class under Title VII.

An interdisclipinary effort navigating all aspects of workplace hazards, safety and compliance through all phases of the global health pandemic.

Since the beginning of the pandemic, Hunton Andrews Kurth LLP has been advising some of the largest companies in the country regarding COVID-19 in the workplace, including assisting companies in developing workplace policies and procedures, advising on compliance with agency guidance and shutdown orders, assessing future claims risk and developing mitigation strategies to reduce risk. As the inevitable first wave of COVID-19 ...

As indicated in our previous blog on this topic, on May 30, 2020, the U.S. District Court for the District of Columbia issued a two page order invalidating five elements of the NLRB’s 2019 election regulation, based on Count One of the plaintiff’s complaint.  On June 7, the court issued its promised memorandum opinion further explaining that order.

The opinion makes three key points.

Hunton Andrews Kurth LLP partners Deidre Duncan, Amber Rogers and Emily Burkhardt Vicente were named among Profiles in Diversity Journal’s 2020 Women Worth Watching^®. The honorees, whose profiles will appear in the journal’s summer issue, represent women executives from nonprofit, corporate and government sectors whose accomplishments and contributions have broken new ground.

Based in Washington, DC, Duncan is the Environmental Practice Leader and focuses on environmental, energy and administrative law relating to water and natural resource issues ...