September 16, 2021

Labor and Employment Newsletter

4 min


President Biden Promises New OSHA Rule: Employers with 100 or More Employees Must Require Vaccinations or Weekly Testing

On September 9, 2021, President Biden announced that the Occupational Safety and Health Administration (OSHA) will create an emergency temporary standard (OSHA Rule) for private businesses with 100 or more employees that will require their employees to be fully vaccinated against COVID-19 or undergo weekly COVID-19 testing. Since the OSHA Rule will be enacted as an emergency temporary standard, it will avoid the mandatory public comment period and will be reviewed on an accelerated timeline. President Biden also announced that all federal government employees and contractors will be required to be fully vaccinated, along with many healthcare workers.

The Pro-Labor Shift Has Arrived: NLRB General Counsel's New Agenda Signals Significant Changes Coming to Labor Law

We previously wrote here that President Biden's nomination of union-side attorney Gwynne Wilcox to the National Labor Relations Board (NLRB) signaled a sharp turn to the left on policy matters and foreshadowed the revisitation of pro-employer decisions that would directly impact the labor-management relationship and how employers conduct their business. We are now beginning to see the shift take shape. On August 12, 2021, the NLRB's top attorney, General Counsel Jennifer Abruzzo, took the first steps in implementing this pro-labor shift with her recently issued memorandum projecting her agenda for reshaping labor policy and law (the Agenda). The Agenda indicates Abruzzo's intent to review and reverse recent – and some long-standing – employer-friendly legal precedents. See G.C. Memo. 21-04. Employers all need to be aware that we are rapidly approaching a new and different state of labor law under the current administration.

Reminder: Time May Be Running Out on Your Deadline to Comply with New York's Annual Anti-Harassment Training Obligations

New York State and New York City employers must complete their annual anti-harassment training obligations. Training must be conducted once per year, which can be measured by calendar year, anniversary of hire, or any other date the employer chooses. Click below for a brief synopsis of the training requirements.

Recent Circuit Court Rulings Affirm Line of Defense for Employers in FLSA Collective Actions Involving Out-of-State Plaintiffs

The Fair Labor Standards Act (FLSA or the Act) allows employees to sue their employers in federal or state court, on behalf of themselves and others similarly situated, for violations of the Act’s federal minimum wage and overtime requirements and child labor protections. These lawsuits – which are commonly brought against employers – are known as “collective actions” and historically have been brought by plaintiffs within a single state or on a nationwide basis. Recent cases have demonstrated that employers are more susceptible to collective actions involving out-of-state plaintiffs in certain jurisdictions over others. Employers who are aware of these jurisdictional distinctions can more strategically defend themselves against FLSA collective actions. In jurisdictions where a court is more likely to dismiss nonresident plaintiffs from a FLSA collective action, employers can successfully limit the scope of the action and, with that, their potential liability and damages.

Education Roundup – The Department of Education Says Goodbye to the 2020 Title IX Regulations’ Exclusionary Rule

On August 24, 2021, the Biden Administration’s Department of Education announced that it “immediately ceas[ed] enforcement” of the 2020 Title IX Regulations’ exclusionary rule which prevented a decision-maker at an institution for higher education (IHE) from considering statements made by parties or witnesses who did not participate in cross-examinations at the live-hearing when reaching a determination. This decision was in response to a federal district court decision holding the exclusionary rule provision to be “arbitrary and capricious.”

Attorney Spotlight

Taylor BleisteinWhy are you passionate about this practice?

Taylor Bleistein: The workplace, like the world at large, can be complex. One of the great benefits of being a labor and employment lawyer is that we can help clients navigate the dynamic and sometimes complex relationships that occur in the workplace. My favorite aspect of this practice is how interpersonal and constantly evolving it is for both the attorneys and our clients. Everyone from the summer intern to a retiree has interacted with labor and employment laws, and those interactions have shaped their varying work experiences. I feel grateful knowing the work we do in the Labor and Employment Group matters to the wide variety of clients we represent.

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.