July 27, 2023

Labor and Employment Newsletter

3 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.


Dueling Over Diversity: Republican and Democratic AG Letters Highlight the Divide Over Corporate Diversity Initiatives

While the Supreme Court's recent decision in Students for Fair Admissions v. President and Fellows of Harvard College was explicitly limited to the educational setting, its prohibition of race-based affirmative action programs in college admissions has prompted concerns that employers' diversity, equity, and inclusion (DEI) programs might become the subject of the next legal challenge. Thirty-four attorneys general have now entered the fray, with views about the case's impact breaking along party lines.

Captive Audience Meetings in the Crosshairs Again: New York's Imminent Ban

New York State's Legislature recently passed a bill that, once signed by Gov. Kathy Hochul, will effectively prohibit employers from holding mandatory employee meetings for the purpose of discussing labor elections and union organizing. These meetings are often referred to as "captive audience" meetings. New York is poised to join a growing list of states that ban this common employer practice. After the governor's signature, which is expected, the law will take effect immediately. New York employers — especially employers without unionized labor — should prepare now for the new union organization rules that will soon be here.

Pre-Employment Background Checks: Considerations for Employers When Screening Prospective Employees

Employers commonly conduct background checks on prospective employees in various areas that they may think relevant when deciding whether to hire an individual for a job. Yet, federal, state, and local laws are increasingly regulating and limiting pre-employment background checks to protect prospective employees from perceived unfair or illegal treatment. Given this trend, we thought it worthwhile to go over some considerations for employers when screening prospective applicants as well some practical tips for mitigating legal risk.

July Filing Deadlines for Employee Benefit Plans

By July 31, employers that sponsor self-funded medical plans must report and pay their PCORI fee. By July 31, employers that sponsor calendar-year employee benefit plans that are subject to ERISA must file a Form 5500 (unless an exception applies) or request an extension by filing a Form 5558.

New York's Non-Competition Agreement Ban Is (Almost) Here: Key Questions Employers Should Consider Now Before the Ban Takes Effect

Last month, New York's legislature passed a bill that, if enacted, will substantially prohibit employers from entering into non-competition agreements with their employees. Governor Kathy Hochul is expected to eventually sign the bill, which will create a seismic shift in New York's non-competition agreement landscape.

Tip of the Month

Daniel HofferDan Hoffer: In the wake of the California Supreme Court decision in Adolph v. Uber Technologies, Inc., California employers should review the class action waiver language in existing arbitration agreements. Specifically, to enhance the likelihood that a court will stay prosecution of the representative PAGA action pending disposition of arbitration of the individual PAGA claim, consider adding language expressly requiring that representative claims be stayed, in court, pending the outcome of any individual claims in arbitration.

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.