May 18, 2023

Labor and Employment Newsletter

4 min

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.


NLRB Floods Noah's Ark Decision with Additional Remedies for Egregious Violators

On April 20, 2023, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in Noah's Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (2023) in which it announced a non-exhaustive list of remedies available in cases involving egregious or repeated violations of federal labor law. The case is notable for two reasons. First, the remedies prescribed by the Board went above and beyond the remedies awarded by an administrative law judge at the NLRB and the remedies imposed by a federal court judge who decided a related case in federal court. Second, the NLRB's decision undertook a detailed explanation of why certain remedies should be ordered in combination with other remedies to achieve the Board's desired effect of protecting employees' Section 7 rights.

Separation of Church and Cubicle: Supreme Court Considers Increasing Burden on Employers

How far must employers go to accommodate their employees' sincerely held religious beliefs? Last month, the Supreme Court heard oral argument in Groff v. DeJoy, a case that asks the Justices to answer this very question—and potentially alter employers' accommodation obligations in the process.

What the Bleep!?: NLRB Makes it More Difficult to Discipline Employee Outbursts

On Monday May 1, 2023, the NLRB issued a decision that makes it more difficult for employers to discipline or terminate employees who have engaged in "abusive conduct." This decision, Lion Elastomers LLC II, overturns the Board's 2020 General Motors decision and requires employers to look critically at the context of abusive conduct before disciplining an employee. The Board's decision was premised on the principle that to fully protect employee rights, "conduct during the course of protected activity must be evaluated as part of that activity—not as if it occurred … in the ordinary workplace context."

DHS Further Extends I-9 Flexibilities Until August 2023

In a May 4, 2023 announcement, the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), granted employers until August 30, 2023 to resume compliance with pre-COVID-19 Form I-9 requirements. As we previously reported on September 26, 2022 and October 20, 2022, in response to the COVID-19 pandemic, the DHS has been allowing employers with remote employees to collect, inspect, and retain certain employees' identity and employment authorization documents remotely, rather than in person. This flexibility, which was originally set to expire in October 2022, was last extended until July 31, 2023. While the July 31st expiration date remains in place, the DHS is now offering employers a grace period of 30 days to reach compliance.

Education Roundup: Key Handbook Updates for the 2023-2024 School Year

Reviewing your school's student and employee handbooks on a regular basis is an invaluable practice for ensuring that these documents accurately reflect the school's expectations, values, and procedures, as well as ensuring that they address any recent developments in the law. On a regular basis, independent schools should reflect on their current policies and procedures as stated in their handbooks, analyze which policies still function well and which do not, and update the handbooks so that they reflect the school's current practices. This way, employees and community members can have a clear understanding of the school's expectations for the coming school year.

Tip of the Month

Emily TortoraEmily Tortora: As part of the 2024 Budget, signed into law on May 3rd, the minimum wage in New York State is set to increase. As of January 1, 2024, the minimum wage in New York City and Westchester, Nassau, and Suffolk Counties will rise to $16.00 per hour, with the rate increasing to $15.00 per hour in the remainder of the State. These hourly rates will increase by fifty cents per year until January 1, 2027, at which time any annual increase will be tied to the consumer price index. Employers who compensate their employees on an hourly basis should be prepared to start implementing these changes in the new year.

About the Labor and Employment Group

The national, 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.

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