December 02, 2021

Labor and Employment Newsletter

7 min


As Employers Race to Fill Gaps in the Labor Market, Pay Practices Are Likely to Come Under Scrutiny

Over the past 18 months, the stresses of the COVID-19 pandemic have had a jarring impact on the American labor market. Many of the companies that were forced to dramatically downsize their workforces in response to the onset of the pandemic are now the same companies struggling to fill the vacancies in their labor forces as the economy recovers. According to the United States Department of Labor ("USDOL"), a record number of workers – approximately 4.4 million – quit their jobs in September 2021.  This instability in the labor market has particularly impacted female workers. Since the onset of the pandemic, 57.5% of jobs lost were positions that had been worked by women. As schools have reopened, job opportunities have increased, and federal assistance has waned, the hope that many women would reenter the labor force has dwindled.

Fast Times in Federal Courts: Will the Vaccine Mandates Stay, or Will They Go?

Over the last two months, three arms of the federal government have issued guidance mandating COVID-19 vaccines for various groups of employees. Unsurprisingly, each of these mandates has been challenged in court. Some employers are waiting to see how these legal challenges will be resolved before implementing any policies; others have forged ahead with their own internal vaccination rules, but are following these cases to ensure they are in compliance if and when the time comes. The status of these mandates will change rapidly as various courts consider arguments for and against them. For now, click below for the status of the three federal COVID-19 vaccination mandates as of the time of this alert.

EEOC Update: Artificial Intelligence, Actual Discrimination

On October 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced an initiative to ensure that the use of artificial intelligence (AI) in hiring and other employment decisions complies with federal civil rights laws. The EEOC says the initiative will guide applicants, employees, employers, and technology vendors in ensuring that AI is used fairly and consistently.

In the agency's announcement, EEOC Chair Charlotte A. Burrows explained that "the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs," and that the EEOC "must work to ensure that these new technologies do not become a high-tech pathway to discrimination." Click below to read what the EEOC's new initiative on AI will do.

Education Roundup – Providing Equity in Access to the Title IX Grievance Process: How IHEs Can and Should Accommodate Participants' Disabilities

Title IX of the Education Amendments of 1972 (Title IX) mandates a thorough, multistep grievance process to respond to and investigate allegations of sex discrimination, including sexual harassment and sexual violence, at covered institutions of higher education (IHEs). While the mandated process is meant to provide overall access and equity for complainants and respondents, some individuals may require accommodations to meaningfully participate in all aspects of the process. These accommodations may stem from preexisting medical conditions or be needed as a result of the physical, mental, or emotional impact of the particular incident in question. When faced with such requests, IHEs should be aware that Title IX requires them to provide reasonable accommodations for eligible students with disabilities to facilitate an equitable process for all parties involved. Below are some of the best practices for handling accommodations during the Title IX grievance process.

We Want to Hear from You

What legal issues are keeping you up at night?

We are continuing to monitor key trends and significant updates that affect employers across a wide variety of industries. We want to make sure we touch upon issues that are of concern to you. We invite you to take a moment and let us know what you would like to hear more about in this newsletter. Click below to take our brief survey.

Upcoming Event

Does Your Website Comply with the ADA? Don't Wait for a Class Action to Find Out!

December 2, 2021 | Webinar

Is your website covered by the Americans with Disabilities Act (ADA)? The short answer is: possibly. This area of the law continues to evolve, with state-by-state differences based on the type of website. In the meantime, class actions alleging lack of website accessibility are hot. Join Nicholas Reiter and JP Cart for a discussion of the legal and practical issues encountered in complying with the ADA and Web Content Accessibility Guidelines (WCAG) and responding to litigation.

Attorney Spotlight

We are pleased to announce the addition of six first-year law clerks and an associate to the Venable Labor and Employment team and introduce them to you today.

Cassandra Brumback
Law School: The University of Baltimore School of Law
Venable Office: Baltimore, MD

Cassandra Brumback graduated from the University of Baltimore School of Law and is a law clerk in Venable's Baltimore office. Cassandra developed her interest in employment law while interning for Judge George Russell III in the U.S. District Court for the District of Maryland. Before law school, Cassandra taught high school Spanish and worked for a nonprofit as an immigration legal assistant. In her free time, she enjoys running, biking, and Baltimore Ravens games.

Alexander Clementi
Law School: Brooklyn Law School
Venable Office: New York, NY

Alex Clementi graduated from Brooklyn Law School and is a law clerk in Venable's New York office. During law school, Alex was an executive articles editor at the Brooklyn Journal of International Law and interned in the legal department at WNET. Prior to law school, Alex worked as a chef in Boston and New York City. In his free time, Alex enjoys cooking, watching Boston sports teams, and playing with his one-year-old daughter.

Samantha Furman
Law School: Vanderbilt University Law School
Venable Office: New York, NY

Samantha Furman graduated from Vanderbilt Law School and is a law clerk in Venable's New York office. As a law student, Samantha participated in the Vanderbilt Criminal Practice Clinic. Prior to attending law school, she worked as a regulatory paralegal, primarily supporting Venable’s International Trade Practice Group in Washington, DC. In her free time, Samantha enjoys step aerobics, baking, and going on walks with her dog, Mia.

Page Kim
Law School: University of Virginia School of Law
Venable Office: Washington, DC

Page Kim graduated from University of Virginia School of Law and is an associate attorney in Venable's Washington, DC office. Page interned for the Honorable Chief Judge Beryl Howell in the United States District Court for the District of Columbia and studied the intersection of employment and education law while at UVA. Prior to attending law school, Page worked as an elementary school art teacher and continues to spend much of her free time painting and visiting art museums.

Imani Menard
Law School: Vanderbilt University Law School
Venable Office: Washington, DC

Imani Menard graduated from Vanderbilt Law School and is a law clerk in Venable's Washington, DC office. During law school, Imani was a student law clerk for the Honorable Christopher Maravilla, an administrative judge at the FAA. In her free time, Imani enjoys cooking, reading, and traveling.

Jacob Polce
Law School: Emory University School of Law
Venable Office: Baltimore, MD

Jake Polce graduated from Emory University School of Law and is a law clerk in Venable's Baltimore office. During law school, Jake was a student law clerk for the Honorable Leigh Martin May of the United States District Court for the Northern District of Georgia, and externed in the United States Attorney's Office for the NDGA. Outside of work Jake enjoys golf, watching college football, and hiking with his dog.

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.