March 04, 2022

Labor and Employment Newsletter

4 min


The Likely End of Mandatory Arbitration Agreements for Sexual Misconduct in the Workplace

On February 10, 2022, the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act), drastically limiting the scope of pre-dispute arbitration agreements and class/collective action waivers for sexual harassment and sexual assault disputes, and ushering in substantial protections for victims of workplace sexual misconduct. Consistent with his Statement of Administration Policy, President Biden is expected to sign the Act into law. While many states have already taken steps toward limiting or prohibiting the application of mandatory arbitration agreements for sexual harassment in the workplace, this is the first successful piece of federal legislation to address this topic specifically.

Trio of 2021 New York Decisions Sharpens the Focus of Restrictive Covenants in M&A

A trio of decisions from the New York state and federal courts in 2021 provided a helpful snapshot of several important factors that courts in New York consider when analyzing noncompetition agreements. Historically, courts have taken a permissive approach to noncompetition covenants that are incidental to the sale of a business, and a skeptical approach to noncompetes in the employment context. In the context of a sale of a business, courts regularly enforce reasonable covenants not to compete against sellers based on the policy that the seller should not recapture through its competition the goodwill that it just sold. In contrast, the relative skepticism courts hold for noncompetes in employment agreements is rooted in New York's strong public policy favoring employee mobility. Three decisions issued last year put these distinctions in sharper relief and provide insight into how courts analyze these covenants. This article will review the facts that drove the courts' opinions in these cases.

Education Roundup: Effective Tools for IHEs in the Employee Recruiting, Hiring, and Retention Processes

For institutions of higher education (IHEs), diversity, equity, and inclusion (DEI) is a top priority. DEI is achieved through a culture and policies that recognize the value of the unique abilities and perspectives of every individual. The benefits to prioritizing the development and integration of a diverse workforce include a more dynamic and culturally responsive academic environment; a better understanding of the needs of IHEs’ students, employees, and surrounding community; a supportive and inclusive campus for underrepresented students and employees; and, of course, a reputation as a committed and responsible IHE, which will lead to attracting and retaining diverse students and employees. There is a greater call to action nationwide—from students, parents, and community stakeholders—for IHEs to diversify their workforce. This article will highlight some of the high-level actions that your IHE can take to recruit, hire, and retain diverse employees while remaining compliant with federal, state, and local laws and regulations.

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

Page Kim: The workplace has changed significantly (and will continue to) in many ways – whether it’s due to culture, combinations of different generations, or shifts to a remote environment. As a labor and employment lawyer, I’m excited to help our clients navigate this transition for the benefit of employers and employees.

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.