Hunton Employment & Labor Perspectives

California Labor Code §2802 requires employers to reimburse employees for all “necessary expenditures” incurred by an employee in the discharge of his or her duties. Business travel expenses fall into this category, as do uniforms, and even the portion of personal cell phone costs that can be attributed to business use. Thus, theme-based businesses that clothe employees in specialized uniforms or costumes (like the sailor outfits in Season 3 of Stranger Things) must provide those specialized outfits or reimburse employees for the expenses incurred in buying and maintaining them.

The body of law surrounding class action employment arbitrations received another jolt Monday when the Second Circuit revived an arbitration action with a potential class of roughly 70,000 employees.

In Jock v. Sterling Jewelers, the Second Circuit overturned the district court and upheld an arbitrator’s decision to bind absent class members to the arbitration provisions of the company’s agreement.  The case represents another significant development in the realm of class arbitrations and class waivers, which have been the subject of significant recent litigation.

As we have previously reported here and here, courts and the National Labor Relations Board (“NLRB”) have released a number of recent decisions favoring the enforceability of arbitration agreements in the employment context.

It is now settled law that class-action waivers in arbitration agreements do not violate the National Labor Relations Act (“the Act”) or infringe on employees’ Section 7 rights under the Act.  In a recent decision, the NLRB extended this holding to allow employers to implement arbitration programs—including those with class-action waivers—in direct response to litigation by its employees.

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

As originally reported on the Hunton Retail Law Resource Blog, the US Chamber of Commerce, along with two other business-oriented groups, filed an amicus brief urging the Ninth Circuit to overrule a $102 million judgment against Wal-Mart.

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As discussed on the Hunton Retail Law Resource blog on November 5, 2019, for the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA).  Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.

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