December 16, 2021

Labor and Employment Newsletter

5 min


Three Issues to Consider Before Implementing a Weekly COVID-19 Test Policy

The Occupational Safety and Health Administration's (OSHA) vaccine-or-test standard has forced employers to make some tough choices. OSHA's November 5, 2021 Emergency Temporary Standard (ETS) purports to require employers with 100 or more employees to implement either a mandatory vaccination policy or weekly testing for unvaccinated employees to protect unvaccinated workers from the coronavirus. One key question is whether to require employees to get vaccinated or to permit testing. Click below for three key issues employers need to consider before implementing a testing policy.

'Tis the Season for New California Employment Laws

As we approach the end of 2021, employers should be aware of new California employment laws that will go into effect on January 1, 2022. Click below for a summary of a handful of important new rules that employers can use to review and update employee handbooks, separation agreements, nondisclosure agreements, and other policies and documents accordingly.

New York City to Require Vaccines for Private Employers by December 27

On December 6, 2021, outgoing Mayor Bill de Blasio announced a first-of-its-kind vaccine mandate for private employers in New York City. Effective December 27, 2021, private employers must require all employees to be fully vaccinated. In his press conference regarding the announcement, the Mayor responded that, as of now, the mandate will not apply to fully remote employees or employees who are alone in the workplace. Mayor-Elect Eric Adams, who takes office January 1, 2021, has already responded to Mayor de Blasio's plan, stating that he will evaluate this new mandate when he enters office to determine if he will continue with it during his tenure.

Intragovernmental Efforts to Expand the Pro-Labor Shift Continue as the DOJ and FTC Pursue Antitrust Enforcement and Policymaking Avenues

The current administration's pro-employee, pro-labor policy shift continues to take shape. We previewed here how this policy shift has begun to expand to other federal agencies and fields outside the traditional employment setting, including the Federal Trade Commission (FTC) and Chair Lina Khan's anticipated FTC enforcement and rulemaking efforts to regulate labor markets and strengthen antitrust law. The Department of Justice (DOJ) had begun focusing on labor markets more at the end of the last administration, with several criminal price-fixing cases involving labor markets. Recently, DOJ defeated an effort to dismiss the first of its criminal indictments, against an owner and director of a therapist staffing agency for alleged wage-fixing. A federal court in Texas recently denied the staffing agency owner's and codefendant's motions to dismiss the DOJ's criminal indictment, in which the court rejected their argument that the Sherman Antitrust Act does not allow for criminal prosecution of alleged wage-fixing (i.e., agreements between companies to fix employee wages or benefits at certain levels). See U.S. v. Jindal, Civ. No. 4:20-cr-00358 (E.D. Tex. Nov. 29, 2021).

Education Roundup - Are We Out of the Woods Yet? Getting Your School Enrollment Contract in the Clear for the 2022-2023 School Year

A well-drafted enrollment contract serves many purposes: it not only confirms the tuition obligation, but can also serve to reinforce particular school policies, set the tone for the relationship between schools and families, and establish the expectations for membership in the school community and the consequences for conduct that is inconsistent with those expectations. As schools continue to provide their educational program amid the challenging circumstances presented by, among other things, a seemingly ever-evolving pandemic, an enrollment contract serves another important role: affirming the ability to modify school policies and protecting the school against unanticipated scenarios. Click below to read the common trouble areas independent schools should consider addressing before issuing or reissuing enrollment contracts for the 2022-2023 school year.

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 email our team of attorneys.

Attorney Spotlight

Clark BrianBrian Clark: Prior to law school I had worked as a union carpenter, which gave rise to my interest in pursuing labor law. While initially union-minded, a wise law school professor put me on the management side in a collective bargaining class, which opened my eyes to the obvious fact that while unions ask, it is employers who give. Since law school, and through government service with the Solicitor of Labor and years of private practice, I have maintained the conviction that the best way to be “pro-employee” is to be on the management side. I know that all my clients want to treat their employees well and do what is best for them within the constraints of their budget, operational needs, and the law. Unions and plaintiff attorneys can only react, while being on the management side allows you to be involved in assisting and guiding employers to make the right decisions. This is never more true than today when employers are faced with an ever-increasing number of unprecedented employment issues: e.g., cultural diversity, gender identification, remote work, pandemic response, social movements. Being an employer’s trusted advisor to guide them through the complexities and nuances of the ever-changing workplace makes what I do very rewarding.

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.