Hunton Employment & Labor Perspectives

On August 15, 2024, the California Supreme Court held in a unanimous decision that public employers are not “employers” within the meaning of the meal-and-rest-break provisions of the California Labor Code, and the California Private Attorneys General Act (“PAGA”) exempts public employers from penalties for violations of Labor Code provisions carrying their own penalties.  The Court’s ruling substantial limits public employees’ ability to sue for wage-and-hour violations.

On August 22, 2024, the Board ended its 50-year history of allowing consent orders in unfair labor practice cases.  In Metro Health Inc. d/b/a Hospital Metropolitano Rio San Pedras, the Board held that: “in all pending and future unfair labor practice cases, the Board will not terminate the case by accepting or approving a consent order.”

As we discussed in a prior blog entry, the National Labor Relations Board (“NLRB” or “Board”) ordered a novel remedy — consequential damages — against an employer in its decision in Thryv, Inc., 372 NLRB No. 22 (2021).  The current Board envisions this sort of remedy as covering a wide swath of potential financial repercussions against a party found to have violated employee rights, such as unlawful termination of employees.  This could, include, for instance, mortgage payments and credit card late fees.  With interest, these damages can quickly balloon to tens of thousands of dollars and change the risk and settlement calculus. 

Earlier this month, the U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) went live with its Severe Injury Report Dashboard (“SIR Dashboard”).

The California Legislature recently passed a bill that would prohibit employers from requiring employees’ attendance at meetings discussing the employers’ political or religious views, including meetings held to address union activity.  The bill known as the “Captive Audience Bill” is backed by unions and opposed by some business groups that say the proposed ban is too broad and would infringe on First Amendment Rights.

On August 23, 2024, the U.S. Court of Appeals for the Fifth Circuit struck down the Department of Labor’s (“DOL”) tip credit rule, known as the “80-20-30” rule, which limits the ability of employers to satisfy a portion of tipped employees’ wages with earned tips.

The EEOC is asking the Ninth Circuit to clarify the U.S. Supreme Court’s new standard for determining the type of harm that constitutes an adverse job action in discrimination cases and to apply that standard or remand the case at issue so the lower court can apply the new standard.

On August 9, 2024, Illinois Governor J.B. Pritzker signed H.B. 3773 into law, requiring all Illinois employers to notify employees and applicants when they use artificial intelligence (A.I.) to make employment decisions.

On June 18, 2024, the Equal Employment Opportunity Commission (“EEOC”) released Promising Practices for Preventing Harassment in the Construction Industry (the “Guidance”), which highlights the EEOC’s recommended anti-harassment guidelines for the construction industry.  The initiative is part of the EEOC’s broader effort to address bias in the construction sector amidst significant federal investment through the Infrastructure Investment and Jobs Act and the CHIPS and Science Act.

On April 23, 2024, the Federal Trade Commission (“FTC”) approved a final rule banning most non-compete agreements between employers and their workers (the “Final Rule”). However, in the afternoon of Tuesday, August 20, 2024, Judge Ada E. Brown of the United States District Court for the Northern District of Texas, followed her July preliminary injunction against the rule with a substantive ruling granting summary judgment in favor of the plaintiffs challenging the Final Rule and against the FTC (“Memorandum Opinion and Order”), explaining that “the Court concludes the text and the structure of the FTC Act reveal the FTC lacks substantive rulemaking authority with respect to unfair methods of competition, under Section 6(g). See generally 15 U.S.C. § 46(g); 15 U.S.C. § 57a. Thus, when considering the text, Section 6(g) specifically, the Court concludes the Commission has exceeded its statutory authority in promulgating the Non-Compete [Final] Rule.”  Memorandum Opinion and Order at 22.