March 18, 2021

Labor and Employment Newsletter

5 min


NLRB Withdraws Near-Final Rule Blocking Graduate Students from Unionizing at Private Colleges and Universities

On March 12, 2021, the National Labor Relations Board (NLRB or "the Board") announced its decision to withdraw its rule, proposed more than a year ago ("Proposed Rule"), to exempt certain college and university student workers from coverage under the National Labor Relations Act (NLRA). Under the Proposed Rule, the NLRB sought to remove student workers from the definition of employees under the NLRA. The Proposed Rule was crafted to overrule the NLRB's 2016 decision that extended the right to unionize to teaching assistants in private colleges and universities ("the 2016 Decision") and to remove the obligation of such educational institutions to recognize student unions. Now, after more than a year of anticipating the Proposed Rule's contemplated changes, these institutions can expect a redoubling of student organizing efforts on their campuses under the NLRB's 2016 Decision.

What Will the "New Normal" Be? As Local Jurisdictions Ease Mask Mandates and Public Restrictions, OSHA Announces Increased Enforcement of OSHA Safety Protocols

As we move into the warmer spring and summer months and more people receive vaccinations at an accelerating pace, states and localities are beginning to relax or repeal COVID-19 mandates on facial coverings and social distancing. Following this relaxing of restrictions in the workplace may be perilous for employers, as the Occupational Safety and Health Administration (OSHA) announced new enforcement efforts relating to continued COVID-19 protections for workers and has strongly implied it may issue an emergency temporary standard (ETS) in response to President Biden's call for such a standard. In our prior newsletter, we wrote about President Biden's Executive Order on Protecting Worker Health and Safety directing OSHA to issue a new ETS on workplace safety to protect workers from COVID-19 by March 15, 2021.

President Biden Orders Review of Title IX

President Biden took the first step toward undoing many aspects of President Trump's Title IX regulations when he signed an executive order directing Secretary of Education Miguel Cardona to begin review of the previous administration's controversial Title IX regulations ("2020 Regulations"). While it is impossible to predict the future, given the Biden administration's emphasis on gender equality, the president is expected to take a more victim-oriented approach, putting the current regulations' provisions—which focus on protections for the accused—most at risk. We have highlighted some of these key provisions.

EEOC Blesses Employer-Mandated COVID-19 Vaccinations

COVID-19 vaccines have arrived. Employers now must ask themselves whether they may require employee vaccinations after the vaccines become readily available. The U.S. Equal Employment Opportunity Commission (EEOC) has published new guidance aimed at helping employers tackle the wave of inquiries and issues that will arise once vaccinations become widely available. In short, the EEOC's new guidance says yes, employers can mandate vaccination, subject to some potential exceptions relating to compliance with disability and religious anti-discrimination and accommodation laws.

Pension Relief Provisions in the American Rescue Plan Act of 2021: Plans Receive Funding Relief but Many Questions Remain

President Biden's signing of the American Rescue Plan Act of 2021 (ARP) culminates a decade-long effort by stakeholders in the multiemployer pension system to obtain funding relief for nearly 200 multiemployer pension plans that face insolvency or near-insolvency over the next several years. The pension subtitle of the legislation (Title 9, Subtitle H) also provides critical funding relief for single-employer pension plans whose pension obligations have dramatically increased since the Federal Reserve began lowering interest rates in the second half of 2019 and in 2020. Click below for a high-level summary of the multiemployer and single-employer pension relief provisions in the legislation.

New COBRA Subsidies—What Employers Need to Know Now

Last week, Congress passed and the President signed the American Rescue Plan Act ("the Act"). Under the Act, the federal government will subsidize the COBRA premiums of certain individuals for six months. However, employers and COBRA administrators will shoulder much of the administrative burden relating to the subsidy. Members of our employee benefits team from Washington DC, New York City, and San Francisco provide a high-level summary of the Act's COBRA subsidy provisions.

Education Roundup: What Independent Schools Can Expect from the Biden Administration

With President Biden starting to fill his cabinet, independent schools are beginning to see the implementation of policy changes, representing a departure from the previous administration. While certain policy changes are under way, additional policy changes and/or laws are expected to come. Click below to read insights from Venable's Independent School Law Practice.

"Gig Workers" May Get Their Day in Court: Supreme Court Declines to Decide Whether Delivery Drivers Must Arbitrate Claims

Many employers require employees to sign arbitration agreements as a condition of employment. Such agreements have risen in popularity following the United States Supreme Court's landmark decision in 2018 that employees may be required to arbitrate claims individually and waive their right to class or collective action litigation. But, as recently learned, arbitration agreements are not enforceable in all circumstances.

Attorney Spotlight

Klapper RudyRudy Klapper joined the L&E practice in Venable's Los Angeles office as a lateral associate in 2019. Since then, he has defended and counseled a wide variety of companies and individuals on various employment-related claims and compliance issues. Rudy was part of the Venable team that successfully pulled off the first all-remote Zoom arbitration hearing in the Los Angeles office last summer, which resulted in a full defense verdict for the client. In his spare time, Rudy plays tennis, writes for a music blog, and plays drums and keyboards to get over the pain of having no live music for over a year (his neighbors haven't complained yet).