October 15, 2021

Labor and Employment Newsletter

4 min


IRS Reminds Businesses to Correctly Classify Workers

During National Small Business Week, the Internal Revenue Service (IRS) issued a notice reminding business owners to correctly identify workers as employees or independent contractors. The notice explained the three-factor test used to classify employees and independent contractors and the consequences of misclassification. Employers are encouraged to keep an eye out for more in-depth discussions by Venable attorneys on other important developments. Employers are also encouraged to contact one of Venable's experienced Labor and Employment attorneys with questions regarding classification of workers as independent contractors or employees.

The Pro-Labor Shift Expands to New Areas

The pro-labor shift under the current administration continues to move forward. We previewed the anticipated changes that could reshape labor policy and law and were foreshadowed in General Counsel Jennifer Abruzzo's agenda for the National Labor Relations Board (NLRB). Recent developments point to a potentially farther-reaching impact on employers as the pro-employee, pro-labor push expands to other federal agencies and fields outside the traditional employment setting.

Players at Private Academic Institutions Are Employees, According to the NLRB

Athletes at private colleges and universities (together, Academic Institutions) receiving athletic scholarships meet the definition of employee under the National Labor Relations Act (NLRA or the Act), according to GC 21-08, a memorandum issued by General Counsel Jennifer Abruzzo of the National Labor Relations Board (NLRB or the Board) on September 29, 2021 (the Memorandum). This recent announcement comes on the heels of increased legal pressure challenging the traditional notion of amateur status in collegiate sports. While the Board has yet to assert jurisdiction over these athletes, Academic Institutions should be prepared for the forthcoming litigation and tread carefully.

Federal Judge Temporarily Blocks New York Vaccine Mandate for Health Care Workers Seeking Religious Exemptions

Updated October 13, 2021: On October 12, 2021, the Northern District of New York converted plaintiffs' temporary restraining order to a preliminary injunction in the case Dr. A et al. v. Hochul et al., No. 1:21-cv-1009 (DNH/ML), continuing to block the implementation of the portion of the New York State Department of Health's (DOH) order requiring health care employers to deny and/or revoke religious exemptions from the COVID-19 vaccine mandate. After reviewing each party's submissions on plaintiffs' motion, the Court held that "the State's summary imposition of [the mandate] conflicts with plaintiffs' and other individuals' federally protected right to seek a religious accommodation from their individual employer . . . and that [the plaintiffs] and others will suffer irreparable harm in the absence of injunctive relief." In so ruling, the Court found that plaintiffs established a likelihood of success on the merits for their Title VII preemption claim by establishing that the mandate's broad scope "effectively foreclose[s] the pathway to seeking a religious accommodation that is guaranteed under Title VII." The Court further held that plaintiffs established a likelihood of success on the merits for their constitutional claims under the First Amendment and Free Exercise Clause, pointing to the inclusion of a medical and religious exemption in a similar mandate issued for certain health care workers in New York just several days earlier, and the present mandate's subsequent elimination of a religious exemption while maintaining a medical exemption.

Attorney Spotlight

Ryan AndrewsRyan Andrews: The saying “an ounce of prevention is worth a pound of cure” holds true for employment law. A ten-minute call with counsel before taking a potentially risky employment action can save hundreds of thousands in legal fees and years of headache after the fact. Our team of seasoned litigators uses their insight gained from defending against employment lawsuits to advise clients daily on how to avoid pitfalls that may lead to litigation.

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.