June 20, 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.


Size Matters: NYC’s New Height and Weight Legislation Reshapes Workplace Protections

On May 26, 2023, Mayor Eric Adams signed into law a bill that expands New York City's anti-discrimination laws, adding height and weight as protected characteristics under the New York City Human Rights Law. Effective on November 22, 2023, this law prohibits discrimination in employment, housing, and public accommodations based on an individual's height and weight. This update is part of a growing national campaign to address weight discrimination, with other states and cities considering similar measures.

The NLRB Places Non-Compete Agreements in Its Crosshairs

Certain states, most notably California, have long sought to restrict or outright ban employee non-competition covenants. The anti-compete crowd gained a strong supporter from the federal administrative state on May 30, 2023, when the General Counsel of the National Labor Relations Board (NLRB) issued Memorandum GC-23-08. That memorandum asserts that the National Labor Relations Act (NLRA) flatly prohibits most non-compete agreements struck between employees and employers, subject to the NLRA—i.e., almost all private sector, non-supervisory employees. This memorandum follows the General Counsel's March memo taking the position that confidentiality and non-disparagement provisions in employee severance agreements are unlawful.

Wigging Out: The NLRB Overturns Another Trump-Era Test and Returns to a Stricter Independent Contractor Standard

On Tuesday, June 13, 2023, the National Labor Relations Board (NLRB or the "Board") issued a decision that effectively increases the number of workers who are considered employees rather than independent contractors under the National Labor Relations Act (NLRA). The decision, The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE overturns an existing Trump-era standard, and is yet another step by the current NLRB to expand the agency’s influence among workers.

Education Roundup: Developing a Policy on Transgender Students? Just Remember PRIDE

Many independent schools have developed or are in the process of developing policies and procedures regarding students who are transgender or gender non-conforming. Often, the laws that govern these issues are not applicable to independent schools, leaving schools with a lack of firm legal guidance. With that, schools take many different approaches, in the interest of ensuring that their policy is consistent with and reflects their unique culture and community. Regardless of the approach an independent school takes, and as with any policy, it is paramount that the policy be communicated to the community, including by ensuring it is included in the parent/family handbook, to ensure that there is a shared, common understanding between the school and its community members.

Upcoming Event

Save the Date: 2023 NACUA Annual Conference

June 27-30, 2023 | Chicago, IL

Venable is proud to continue its sponsorship of the 2023 National Association of College and University Attorneys (NACUA) Annual Conference. The event will take place June 27-30, 2023 at the Hyatt Regency Chicago in Chicago, Illinois. We invite attendees to stop by our table.

Tip of the Month

Nicholas ReiterNick Reiter: "Background check required." Three little words that can cause legal trouble for New York City employers. Under the Fair Chance Act, nearly all New York City employers are prohibited from stating in a job posting or application that a background check is mandatory. Note, however, that New York City employers may still require a background check after a conditional offer of employment is made to an applicant. New York City employers should review their job postings and advertisements to ensure they comply with this requirement.

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.