August 11, 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.


Adolph v. Uber Technologies: The California Supreme Court Gives Employers an Unexpected Road Map for Defending against PAGA Claims

On July 17, the California Supreme Court issued its long-awaited decision in Adolph v. Uber Technologies, Inc., finally clarifying the question of what constitutes standing under California's Private Attorneys General Act (PAGA) after the U.S. Supreme Court had taken a position contrary to long-held state law in a 2022 decision. Adolph rejected the U.S. Supreme Court's conception of PAGA standing, holding that an employee can pursue their individual claim under PAGA in arbitration without losing standing to serve as the plaintiff as the representative PAGA as it moves forward in court.

Escaping the Office: Remote and Hybrid Harassment

Whose idea was it to adopt a hybrid work schedule anyway? Regardless, your HR Department is on the phone asking for assistance with a remote work-related complaint. During a one-on-one meeting over Zoom, one of your employees, Don, asked Sarah where her home office was set up. Sarah briefly turned off her virtual background revealing that her office was in her bedroom. Later that same week, Don sent Sarah a direct message during an all-office Zoom meeting telling her that he "can't stop thinking about you working in your bedroom all day." Having heard the complaint, you call Don into your office where he refuses to acknowledge his wrongdoing because "we were both at home and my comment wasn't sexual." Does Don have a point? No, of course not.

Education Roundup: Are Legacy and Donor Admissions Soon to Become a Part of the Past? The Department of Education Strikes Back Following SCOTUS Affirmative Action Decision

On July 24, 2023, less than a month after the Supreme Court's landmark decision striking down affirmative action practices in college admissions, the U.S. Department of Education, Office for Civil Rights (OCR) has launched an investigation into Harvard University's use of legacy and donor preferences in its undergraduate admissions process. This investigation comes following a complaint filed by three advocacy organizations, alleging that Harvard University's legacy and donor admissions practices discriminate against applicants on the basis of race. With this investigation, the Department of Education has signaled that Institutions of Higher Education (IHEs) can expect increased scrutiny to be applied to preferential admissions practices moving forward and should review policies governing their admissions processes that may ultimately become subject to novel legal challenges in the future.

Tip of the Month

Jennifer ProzinskiJennifer Prozinski: With the significant increase in the general public's use of ChatGPT and other types of generative artificial intelligence (AI), employers should consider whether employees will be permitted to use AI in the performance of their job duties. In determining the permissibility, employers should carefully consider the potential legal implications relating to intellectual property, copyright, privacy, and employment laws. Once a determination regarding permissibility is made, employers should implement a written policy prohibiting or governing use and subsequently monitor AI legal developments and implement changes to the policy, as needed.

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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