July 22, 2021

Labor and Employment Newsletter

4 min


Biden's "Promoting Competition in the American Economy" Order Reflects the Growing Trend Against Non-Competes Across the Country

On July 9, 2021, President Biden issued a sweeping executive order, "Promoting Competition in the American Economy" (the Order). It covers a range of interesting issues, including a mandate to the Federal Trade Commission (FTC) to "exercise [its] statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility." It is still too early to ascertain the extent to which the FTC will run with this mandate, but it is clearly following a developing trend across the country disfavoring restrictions on employee mobility such as non-competition agreements. The evolution of the law on non-competition agreements is gathering speed, and the article linked below will help employers keep pace with the recent trends.

Transitioning Back to the Office with Transgender Employees

Businesses across the United States are grappling with what a return to the office may look like post-pandemic, but their employees may be grappling with how they may look when they go back to work. What does an employer do if one or more of its employees has transitioned during the virtual work period? What questions can you legally ask the employee? Can you demand proof? Click below to learn more.

Federal Judge Gives a Public IHE the Green Light for Mandatory COVID-19 Vaccinations

On July 19, 2021, a federal judge affirmed Indiana University’s policy of requiring its students to be vaccinated against COVID-19. This first-of-its-kind decision is likely to set the bar for future decisions arising from challenges to the introduction and enforcement of mandatory vaccination policies for students entering institutions of higher education (IHEs) this fall. As we have discussed previously, the Centers for Disease Control and Prevention (CDC) issued guidance permitting IHEs with a fully vaccinated population, including students, faculty, and staff, to return to in-person education at full capacity. However, until this decision, no federal court has ruled on an IHE’s mandatory vaccination policy.

Education Roundup – The New York HERO Act: What Higher Education Institutions Should Do Right Now

As we previously reported, on May 5, 2021, Governor Andrew Cuomo signed the New York HERO Act (the Act) into law. Since then, pursuant to the Act, the New York State Department of Labor (DOL) has released its Infectious Disease Exposure Prevention Standard (the Standard) and Model Airborne Infectious Disease Exposure Prevention Plan (the Model Plan), as well as specific templates for 11 different industries, including one for private education (the Private Education Plan). Additionally, the Act has been amended to clarify and narrow existing provisions to alleviate concerns of employers that the Act was overbroad as originally written. Click below for some of the key takeaways.

In the News

Reiter NicholasLaw360 Quotes Nicholas Reiter on New York’s New Airborne Virus Law

Law360 quoted Nicholas Reiter on New York’s new airborne virus law. According to the article, the New York Department of Labor issued model workplace safety standards as it was required to do under the NY Hero Act, which was signed into law in May by New York Gov. Andrew Cuomo. He described it at the time as a "first-in-the-nation" statute that requires employers to have plans in place for preventing the spread of airborne infectious diseases. “They've really created a very robust set of guidelines and rules for employers to follow to ensure that their workplace does not create an unreasonable risk of exposure to airborne infections," said Reiter.

Attorney Spotlight

Gregerson JaniceWhat is one piece of advice that all readers should be aware of right now?

Janice Gregerson: Perhaps the most important piece of advice I can offer to clients today is to be flexible and anticipate the unanticipated. It is important not only to ensure that we hardwire flexibility into our policies and practices, but also to revisit practices already in effect and modify them as needed to reflect the ever-changing landscape. And though there is no one-size-fits-all approach, all policies and practices should reflect the client organization’s culture and priorities.

About the Labor and Employment Group

The bicoastal, 40-person Labor and Employment team at Venable provides guidance and support across the full spectrum of workplace dynamics – helping employers control costs, avoid disputes, and defend themselves when litigation arises. As co-editors of this newsletter, Michael Volpe and Doreen Martin invite you to share the content with your colleagues and reach out with any questions.