Welcome to the second issue of SuperVision 2023! In this latest edition, we cover a variety of issues including AI in the workplace, recent decisions and actions taken by the NLRB and its General Counsel, addressing off-duty conduct, new Virginia employment laws, and a Virginia Supreme Court ruling impacting governmental entities responding to FOIA requests. 

In our first issue of SuperVision, published on April 5, 2023, we began a series on best practices in the employment process, starting with practical tips to minimize litigation risk in employer offer letters. In our second issue, we bring you best practices for performance reviews. In subsequent issues of SuperVision, we will cover additional topics commonly faced by employers. If you have any suggestions on topics you would like us to cover in the best practices series, do not hesitate to contact us. 

While we certainly hope you find these topics useful, Spilman’s labor and employment team is always available to assist you in navigating the ever-evolving and complicated issues involved in managing today’s modern workforce. We are always seeking to add strength and experience to our team. Several of the firm’s practice groups and attorneys – including Labor & Employment – were recognized in the 2023 edition of Chambers USA, a directory of leading law firms and attorneys. Moreover, we recently added three attorneys to our office in Roanoke, Virginia. Jeremy E. Carroll, Michael W.S. Lockaby, and Julian F. Harf come to Spilman with extensive experience in local government matters, litigation, and labor and employment.

We hope you enjoy this issue of SuperVision. As always, if you have any suggested topics you would like us to address here or in a webinar format, please let us know.

Thank you for reading.

Eric W. Iskra, Chair, Labor & Employment Practice Group

Carrie H. Grundmann, Executive Editor, SuperVision

By: Chelsea E. Thompson

What is workplace artificial intelligence or AI? In its simplest form, AI in the workplace is the use of technology or software to monitor employees’ work performance, gather data, problem-solve, or aid in decision making. This technology can take many forms, but the most popular options include Radio Frequency Identification (“RFID”) badges, speed and location monitors on vehicles, keystroke or mouse activity trackers, work pace scanners, computer-based tests, and resume score assignments. An increasing number of employers are using AI to monitor employees and their work, with the EEOC estimating that, as of May 2023, as many as 83 percent of employers (and 99 percent of Fortune 500 companies) use some sort of AI. 

Click here to read the entire article.

By Peter R. Rich

Employers must be cautious in disciplining employees for offensive or abusive conduct directed at management in the workplace in light of standards recently reestablished by the National Labor Relations Board (“NLRB”).

On May 1, 2023, via its supplemental decision in Lion Elastomers LLC, 372 NLRB No. 83 (May 1, 2023), the NLRB reinstated prior Board law requiring that the determination of whether offensive or abusive conduct by an employee engaged in otherwise protected activity is also protected under what the Board described as “setting specific standards.” The Board’s decision was issued on remand from the United States Court of Appeals for the Fifth Circuit to consider the effects of an intervening Board decision in General Motors LLC 369 NLRB No. 127 (2020) that overruled prior Board law on this issue and substituted the Wright Line burden shifting framework. Wright Line requires a determination of whether the employer’s disciplinary decision was motivated by animus towards protected Section 7 activity. Simply stated, the Board’s ruling in Lion Elastomers considers abusive employee conduct as “inseparable” from the accompanying protected activity regardless of whether the employer’s actions were motivated by the Section 7 activity.  

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By: Mitchell J. Rhein

As we have often discussed, the National Labor Relations Board under the Biden administration has prioritized expanding employees’ rights under Section 7 of the National Labor Relations Act (the “Act”). Most recently, in GC Memo 23-08, the General Counsel, Jennifer Abruzzo, argued that the “proffer, maintenance, and enforcement” of non-compete agreements violate the Act because they interfere with employees’ rights under Section 7. 

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By: Julian F. Harf

While employers cannot police all employee conduct outside the workplace, employee interactions outside of work can – and do – impact the work environment. Indeed, under certain circumstances, inappropriate conduct by an employee outside the workplace may still subject an employer to liability. What constitutes actionable discrimination or harassment, triggering potential employer liability, is often a murky question.  

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By: Heather M. Garrison

Employee performance is always rated in one manner or another. Best practice is to rate this performance through known, objective processes. In the context of the employment relationship, performance evaluations are an essential tool for providing workers with insight into how managers are making decisions about promotions, equity, and pay. In addition, performance evaluations will most certainly play a critical role if the employment relationship ends and litigation occurs.

The following guidance is intended to assist employers in refining how the process is planned, conducted, and repeated. 

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By: Carrie H. Grundmann

On July 1, 2023, laws that were passed by the General Assembly and signed into law by Governor Glenn Younkin become effective in Virginia. In the most recent legislative session, a number of new employment laws were passed applicable to Virginia employers. 

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By: Michael W.S. Lockaby

In October 2022, the Virginia Supreme Court decided the case of Hawkins v. Town of South Hill, which fundamentally alters 40 years of precedent in the Commonwealth concerning what is considered confidential and not subject to production in response to a Virginia Freedom of Information Act request. Earlier this month, the Circuit Court issued its decision on remand in light of the Virginia Supreme Court’s decision in Hawkins. The fallout from these two cases is continuing to be felt by local government managers and human resources professionals across the Commonwealth.

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