Hunton Employment & Labor Perspectives

Under California law, an employee’s prior salary cannot be used to justify a pay disparity.  Now, the same is true under federal law – at least in the Ninth Circuit.

In Rizo v. Yovino, the Ninth Circuit recently ruled that an employee’s prior pay history is not a “factor other than sex” that can justify a pay gap under the Federal Equal Pay Act (“EPA”).  This outcome may not surprise employers in California, where state law expressly prohibits using prior salary as a basis for a pay disparity.  But unlike California’s statute, the federal law does not directly prohibit consideration of prior pay.  Rather, the Ninth Circuit looked beyond the plain language of the statute and examined the purpose of the “catch-all” exception, which permits pay differentials based on “any factor other than sex.” The Court concluded that this broadly worded exception “comprises only job-related factors.”

On February 26, 2020, the National Labor Relations Board (NLRB) finalized its rule governing joint employer status under the National Labor Relations Act.

The final rule generally restores the “direct and immediate control” standard that the NLRB applied for decades prior to the 2015 Browning-Ferris decision, but provides additional guidance.

With the age of artificial intelligence (AI) unfolding, products aimed at automating the recruiting and hiring process are hitting the market with increasing frequency.

Companies have been utilizing AI for tasks such as screening resumes, and even interviewing candidates and assessing whether they will be successful employees.  These automated tools range from algorithms that “weed through” resumes to personality assessments and biometric analyses that employ AI to analyze a candidate’s facial expressions, body language, voices, and inflections in video interviews.

Virginia’s 2020 legislative session is not scheduled to wrap-up until March. But Virginia employers need to pay attention now to several game-changing bills moving through the legislative process and expected to be signed into law this spring.  The Hunton government relations team, working with several lobbying clients, has already helped defeat  several of these measures including a proposed repeal of Virginia’s right to work statute.  But others are expected to become law, and could dramatically increase the volume of employment litigation in Virginia.  Employers are therefore well advised to begin planning for these changes now.

February is a great time for employers with New York operations to check on their progress regarding New Year’s resolutions for revising policies, training supervisors and implementing other changes to ensure compliance with recent developments in the law. The changes in employment laws during 2019 provide strong incentives for employers to update their practices. Following are 13 employment law developments that New York employers should make a part of their 2020 “resolutions” and employment practices.

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Effective January 1, 2020, organ donors in California are entitled to an additional 30 business days of unpaid leave.  AB 1223 extends the maximum leave time available to employees who participate in an organ donation program.  This law applies to private employers with 15 or more employees.

On Thursday, the California Supreme Court ruled that employees must be paid for time spent undergoing security checks before leaving work.

The Universal Paid Leave Amendment Act of 2016 (the “Act”), which implements the District of Columbia’s new Paid Family Leave (“PFL”) program, kicks-in for employees on July 1, 2020.  However, employers must post a PFL notice in the workplace no later than February 1, 2020.

Last month, a court in the N.D. of California denied class certification to a group of Chipotle workers who alleged that the burrito chain maintained unlawful English-only workplaces in the state of California.  Guzman v. Chipotle Mexican Grill, Inc., Case No. 17-cv-02606 (N.D. Cal. Jan. 15, 2020).  The opinion is a textbook example of how a lack of uniform written policies can, in some instances, benefit employers defending pattern and practice lawsuits.  Separately, the case also provides occasion to review the EEOC’s stance on English-Only policies.

On February 5th the NLRB determined that an employer can, pursuant to a phone use policy, prohibit the possession and use of cell phones in the cabs of its commercial vehicles, and that a prohibition does not interfere with the Section 7 rights of its employees.