As we previously reported, COVID-19 has fundamentally changed the way representation elections are conducted. From March 1 to November 16, 2020, the National Labor Relations Board issued 167 election decisions and, of those, only 2 manual elections have been directed to proceed in that time-frame. This is a marked change in the Board’s longstanding preference for manual elections. The overwhelming trend towards mail-in elections was necessitated by the COVID-19 pandemic.
In response to the ongoing spread of COVID-19 in California, Governor Gavin Newsom signed AB 685. In short, AB 685 imposes uniform notice requirements on California employers dealing with a potential COVID-19 exposure or outbreak, requires employers to maintain records of COVID-19 notices, and empowers the Division of Occupational Health and Safety (“Cal OSHA”) to close down worksites where the risk of exposure to COVID-19 constitutes an imminent hazard to employees.
HuntonAK Labor and Employment partners Emily Burkhardt Vicente and Roland Juarez have been nominated by the Los Angeles Business Journal as 2020 Leaders in Law. The LABJ recognizes legal leaders and their accomplishments within their organizations and communities.
Earlier this year Emily was named among 2020 Women Worth Watching by Profiles in Diversity Journal, Roland was previously listed among the 2020 Top Labor and Employment Lawyers by the Daily Journal, and both were listed as Labor and Employment Stars by Benchmark Litigation.
Emily and Roland will be featured in the November 16 edition of the LABJ and recognized during a virtual awards ceremony November 18.
Congratulations to both Emily and Roland!
The Equal Employment Opportunity Commission (EEOC) regularly releases guidance and advice to employers to aid in compliance with applicable workplace discrimination laws. For example, over the course of the COVID-19 pandemic, the EEOC has frequently issued and updated guidance on how employers can strike the difficult balance between workplace safety and compliance with the Americans with Disabilities Act.
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.
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.
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.
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.