August 28, 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.


Expansive Accommodation Requirements under the Pregnant Workers Fairness Act Proposed Regulations

The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, and requires that employers with 15 or more employees provide reasonable accommodations to qualified employees and applicants with known limitations stemming from, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing the accommodation would cause an undue hardship. On August 7, 2023, the U.S. Equal Employment Opportunity Commission proposed regulations under the PWFA.

Right to Reef? The Growing Number of State and Local Laws Addressing Off-Duty Marijuana Use by Employees

Few areas of the law have evolved more quickly than the quagmire of federal, state, and local laws governing employee use of marijuana. Although cannabis remains a Schedule I drug under the federal Controlled Substances Act, more than two-thirds of all states have legalized medical marijuana. More than 20 states permit adults who are 21 or older to purchase and consume cannabis products recreationally. The latest trend? A growing number of state and local jurisdictions that have passed laws to protect employees who use marijuana and cannabis products outside of workplace hours and off workplace premises. Employers across the country are now faced with the challenging task of navigating these laws, which vary widely by jurisdiction, to bring their employment policies and practices into compliance and to avoid legal liability.

NLRB Sets New Standard for Evaluating Workplace Rules

On August 2, 2023, the National Labor Relations Board (NLRB) issued a decision in Stericycle, Inc., 372 NLRB No. 113 (2023), which creates a new standard for evaluating whether a company's workplace rules violate the National Labor Relations Act. This decision overturns the standard set in the 2017 decision Boeing Co., 365 NLRB No. 154 (2017), which, in turn, reversed the previous standard set in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004). The new standard, which the Board purports is a modified version of the framework established under Lutheran Heritage, applies to all private employers regardless of the unionization status of its workforce and is decidedly more employee-friendly than previous precedent.

SECURE 2.0 Roth Catch-up Requirement Delayed until January 1, 2026

On August 25, 2023, the IRS issued guidance delaying until January 1, 2026 the SECURE 2.0 requirement that any age 50 catch-up contributions by an employee with prior-year compensation over $145,000 be made on a Roth basis, rather than a pre-tax basis. This requirement was previously set to take effect as of January 1, 2024. The guidance also clarifies that participants who are age 50 or older can continue making catch-up contributions after 2023, regardless of income (in response to a technical drafting error in SECURE 2.0 that could have been read to disallow such catch-up contributions).

Education Roundup: Setting the Boundary: Establishing and Communicating the School's Expectations Regarding Appropriate Interactions Between Employees and Students

The highest priority for any independent school is ensuring the safety and security of the students committed to its care. Central to meeting this responsibility is establishing and enforcing appropriate boundaries between students and employees. In this newsletter, we will review some of the common issues independent schools should consider as they establish and communicate their policies on appropriate interactions.

Tip of the Month

Brian ClarkBrian Clark: "Be open-minded, find out the facts, and be consistent in handling employee issues." When I first started practicing many years ago, I learned it was crucial to press clients on getting all the relevant information, and then correctly assessing it and making consistent decisions to ensure their actions could be readily defended if challenged. This is even more important today, where, in our current climate, I have found employers can be over-reactionary and rush to judgment somewhat when claims are raised against an employee or supervisor, which, in turn, has led to counter-claims and litigation. Take the time to get all the facts, get both sides of the story, put things in context, then make decisions consistent with how you have done so in the past. Making fact-based, reasoned, consistent decisions is the best practice for your workplace and will always put you in the strongest position to defend employment claims.

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.