Labor and Employment Newsletter

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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.

Updates

The Supreme Court Cases Employers Should Be Keeping an Eye on in the New Term

Earlier this year, we wrote about some of the major cases and legal developments for employers to watch in 2023. With the start of the U.S. Supreme Court's new term last month, we are back to provide insight into the next round of potential legal developments employers should watch for.

Before diving into the issues currently under review by the Supreme Court, we first provide some brief updates on the legal developments we previously highlighted.

What Is Concerted Activity? The NLRA Again Alters the Parameters of Concerted Activity, Creating Uncertainty for Employers

Employers are confronting yet another expansion of what constitutes protected employee concerted activity under Section 7 of the National Labor Relations Act (NLRA). As employers well know, Section 7 guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." It is an unfair labor practice, for both unionized and non-unionized employers, to "interfere, restrain, or coerce employees in the exercise of their Section 7 rights, including engaging in concerted activity." Section 8(a)(1).

Education Roundup – My Teacher, the Robot: President Biden's Executive Order on Artificial Intelligence and the Implications for Schools

On October 30, 2023, President Biden issued Executive Order No. 14110 on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. While Venable's Labor Employment Group has previously published on other executive agency guidance on the use of artificial intelligence—or AI—in making employment decisions (here and here), EO 14110 is the first federal directive that directly addresses the impact of AI on the education sector broadly, including, without distinction, both public and nonpublic schools. Specifically, the White House's accompanying Fact Sheet outlines how EO 14110 "directs the most sweeping actions ever taken to protect Americans from the potential risks of AI systems" while also shaping "AI's potential to transform education by creating resources to support educators deploying AI-enabled educational tools, such as personalized tutoring in schools." This duality of EO 14110, and its recognition of both the risks and benefits of AI, leads to two seemingly disparate results.

Tip of the Month

Janice Gregerson: More states are now enacting Child Victims Acts. Generally, these acts repeal—either fully or for a temporary lookback window—the statute of limitations for child sexual abuse claims, allowing survivors of child sexual abuse to bring a civil suit based on abuse that occurred, in some instances, decades before. With that, schools are increasingly finding themselves working to recreate their history of insurance coverage in an effort to identify which carriers held their liability insurance and may be responsible for providing a defense. It is wise for schools to take time proactively to identify, as far back as possible, their insurance coverage. Records are found not just in policies themselves; references to coverage can be also found in other documents, such as board meeting minutes, correspondence, or legal files. Moving forward, it will be important for schools to retain their records of coverage.

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.