Study Guide

On February 10, 2022, the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), barring the enforcement of most mandatory arbitration provisions in cases alleging sexual assault or sexual harassment. Having previously passed in the U.S. House of Representatives, the bill has now gone to the desk of President Biden, who is expected to sign it into law. Once in effect, EFASASHA will apply to all pre-dispute arbitration clauses, including those in contracts executed before the law’s enactment. The law will also invalidate pre-dispute agreements that waive an employee’s right to participate in a joint, class or collective action in court, arbitration or any other forum that relates to a sexual assault or sexual harassment dispute. Furthermore, if a dispute arises about whether a particular claim qualifies as a “sexual assault dispute” or “sexual harassment dispute,” then a court, not an arbitrator, is to answer that question, even if a contractual term exists to the contrary.

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In a decision likely to have a broad impact on many Employee Retirement Income Security Act (ERISA) plan fiduciaries, the Supreme Court reversed a lower court and held that a breach of fiduciary duty claim, which alleged that the fiduciaries of two defined contribution plans sponsored by Northwestern University failed to properly monitor their offered investments, could proceed to discovery.

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Employers in New York City using artificial intelligence (AI), data analytics or statistical modeling in the hiring or promotion process will need to notify candidates in advance and conduct an annual “bias audit.”

Yesterday, the U.S. District Court for the Southern District of Georgia granted a nationwide preliminary injunction against enforcement of Executive Order 14042 involving the vaccine mandate for federal contractors. The decision adds to a string of cases decided in the past few weeks blocking vaccine requirements issued by the administration. We have attached a link to the case here. Federal courts have now blocked the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard with its vaccinate-or-test mandate and the vaccination requirement for healthcare workers contained in an interim final rule issued by the Centers for Medicare & Medicaid Services (CMS).

President Biden’s Executive Order 14042 (EO 14042) requires covered federal contractor employees to be fully vaccinated against COVID-19 by January 18, 2022, if they are not entitled to an accommodation due to disability or religion. Because many colleges and universities have covered contracts with the federal government, they will need to require that their employees comply with the federal vaccination mandate, and, in many cases, have already announced their intentions to do so. Whether certain employees of these colleges and universities count as covered employees, and are subject to the mandate, must be determined on a case-by-case basis. But the mandate has a broad scope and likely applies to many, if not all, employees. Covered employees generally include those who work on or in connection with the covered contract and others who work at a covered contractor workplace even if they do not work on the contract itself. Employees’ work related to human resources, billing and legal review counts as work in connection with the contract.