Moonlighting or Two-Timing? Practical Steps for Employers Managing "Overemployment" Within Their Workforce
In recent years, the rise of remote and hybrid work arrangements has brought increased attention to "overemployment," the practice of employees simultaneously working multiple jobs for different employers. While outside employment, sometimes referred to as "moonlighting," is not inherently improper, it can create significant challenges for employers to navigate.
Will the NLRB Revisit McLaren Macomb? What Employers Need to Know About Section 7 Rights and Severance Agreements
On April 13, President Trump nominated James Macy to be a member of the National Labor Relations Board (NLRB) for a five-year term. One Biden-era NLRB position at risk of being overturned is a ruling that held that the inclusion of non-disparagement and confidentiality provisions that were not narrowly tailored in severance agreements interfered with, restrained, and coerced an employee from exercising their rights under Section 7 of the National Labor Relations Act (NLRA).
EEOC Lawsuit Against the New York Times—the Latest Front in Workplace Discrimination Enforcement
The U.S. Equal Employment Opportunity Commission's (EEOC) lawsuit against the New York Times, EEOC v. The New York Times Company, Case No. 1:26-cv-03704, has emerged as a closely watched test of how federal anti-discrimination law applies to workplace diversity, equity, and inclusion (DEI) initiatives. The EEOC's case reflects its increasingly assertive stance on claims brought by majority-group employees alleging "reverse discrimination" and its broader effort to challenge employment decisions it views as influenced by race or sex.
Attorney Spotlight
Juliana Reno: In 2025, over 150 proposed class action lawsuits were filed against employer-sponsored benefit plans—not only retirement plans, but also health and welfare plans. In 2026, the pace has increased dramatically. In the first quarter alone, 70 such lawsuits were filed. Typically, the plaintiffs claim that the "fiduciaries" have breached their duties to the plan participants. Because fiduciaries are personally liable for breaches, employers should be taking steps to buttress their structural and financial protections against similar litigation. How? Here are some solid starting points:
First, identify the company's plans and the fiduciaries for each plan. If no fiduciary is named or if the fiduciary is simply identified as "the company," courts will typically say that the fiduciary is the board of directors. To avoid being a litigation target, the board may want to delegate some or all of its fiduciary duties to an individual or a committee. Those delegations should be clearly documented through resolutions and charters.
Second, confirm that the company has fiduciary liability coverage for all of the fiduciaries of all of the plans. Fiduciary liability coverage is not the same thing as directors and officers coverage; it is also not the same thing as a fidelity bond! The proper coverage limits will depend on the size and scope of the plans.
Third, review the terms of the plans and the process for selecting and evaluating service providers. The goal of this review is to avoid, as much as possible, the hot button issues that invite litigation. Reach out to experienced ERISA counsel for education about those issues and for fiduciary training.
In Case You Missed It
When Proprietary Code Escapes: How Companies Should Prevent IP Leakage—and What to Do the Moment It Happens
For many companies, the most valuable assets on the balance sheet are not the ones it fully captures. They are buried in source code, internal tooling, model harnesses, prompts, training pipelines, product roadmaps, proprietary datasets, design documents, and deployment logic. In the AI era, that reality has become sharper. Increasingly, the real enterprise moat is more than the model or the patent portfolio; it is the integrated system that distinguishes your business. Specifically, it is the code, the orchestration layer, the workflow logic, the data provenance, the operational know-how, and the internal controls that keep your intellectual property assets from becoming public commodities.
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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. Allison Gotfried, editor of this newsletter, invites you to share the content with your colleagues and reach out with any questions.