Hunton Employment & Labor Perspectives

The legal path between employee arbitration agreements under the Federal Arbitration Act (“FAA”) and representative claims under the California Private Attorney General Act (“PAGA”) has been anything but smooth. A new (albeit unpublished and uncitable) case, Piran v. Yamaha Motor Corp., et al., No. G062198, 2024 WL 484845 (Cal. Ct. App. Feb. 8, 2024)(unpub.) (“Yamaha”), helps to illustrate the challenges and unanswered questions lingering in the wake of this rapidly-developing area of law.

A few months ago, we wrote about the National Labor Relations Board (“NLRB” or “Board”) publishing its widely anticipated final joint-employer rule (the “Final Rule”).  The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer under the National Labor Relations Act (“NLRA” or “Act”). See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).   

The National Labor Relations Act (“Act”) empowers the National Labor Relations Board (“Board”) to “take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.” 29 U.S.C. § 160(c). For much of the Board’s history, that has generally resulted in Board Orders that involve some combination of notice posting, backpay, and reinstatement.

On January 31, 2024, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (the “NLRB” or the “Board”) found that Starbucks Corporation (“Starbucks”) violated federal labor law when certain of its managers asked employees whether they would be working their scheduled shifts or otherwise wanted to be scheduled for shifts during a planned strike that was communicated to management. Employers should take notice of the roadmap this decision provides to avoid similar pitfalls.

California law requires employers with at least 100 employees and at least one California employee, to annually report pay, demographic, and other workforce data to the Civil Rights Department (“CRD”). This reporting is required under Government Code section 12999, and is part of the State’s efforts to promote equal pay. 

When there is a willful violation to the Fair Credit Reporting Act (”FCRA”) consumers can recover either actual damages sustained by the consumer or statutory damages of no less than $100 and not more than $1000. (Punitive damages and attorney fees also are available).  There has been a trend in the district courts examining whether plaintiffs must prove that they suffered actual damage in order to recover statutory damages. Since 2007 several Circuits have reviewed this argument and each has explained that the provision for statutory damages does not require a showing of “actual damages.” The Eleventh Circuit is the most recent to weigh in on this question in Santos v. Healthcare Revenue Recovery Grp., and agrees with its sister Circuits.

Hunton Andrews Kurth LLP is pleased to announce that labor and employment attorneys Ryan Bates, Ryan Glasgow, and Alyson Brown have been recognized by their peers as members of Virginia Business magazine’s 2023 Legal Elite.

Washington, D.C. is the latest in a growing list of jurisdictions to require employers to have “pay transparency” in job postings. Starting in June of 2024, Washington, D.C. will require all employers with at least one employee in the District to post the minimum and maximum projected salary in all job listings or advertisements. The salary projections must be the lowest and highest salary or hourly pay the employer “in good faith believes” it would pay for the role.

The U.S. Department of Labor's (DOL) recently published a final rule on the definition of “independent contractor” under the Fair Labor Standards Act (FLSA) on January 9, 2024. This rule introduces a six-factor "economic realities" test, replacing the 2021 rule and aiming to bring clarity to the classification of workers as independent contractors or employees.

On December 22, 2023, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a final rule that could have consequential effects for federal construction contractors and subcontractors.  The rule, which implements President Joe Biden’s Executive Order 14063, directs agencies awarding “large scale construction contracts” to require the use of project labor agreements (PLA).