October 2022 E-Update


Click here to view entire E-Update as a PDF


The Practical Implications of the DOL’s Proposed Independent Contractor Test

Employee or independent contractor? The determination has consequences for various “stakeholders.” For more, click here.

The White House’s COVID-19 “Playbook” – Preparing Workplaces for Fall and Winter

The White House has issued a “Fall Playbook for Businesses to Manage COVID-19 and Protect Workers,” with a list of recommendations for employers to keep their workforces safe in light of the anticipated rise in COVID-19 infections this fall and winter. For more, click here.

Employers – Update Your Mandatory EEOC Poster!

The federal Equal Employment Opportunity Commission has released a new “Know Your Rights” poster (dated October 20, 2022) that replaces the prior “EEO is the Law” poster and supplement, which employers with 15 or more employees are required to display in the workplace. For more, click here.


Another Federal Appellate Court Finds Computer Boot-Up Time May Be Compensable. As we discussed in our October 2021 E-update, the U.S. Court of Appeals for the Tenth Circuit previously found that pre-shift time spent booting up a computer may be compensable work time where the use of the computer is integral and indispensable to the employee’s work. For more, click here.

Employees Cannot Dictate Their Employer’s Investigation. The U.S. Court of Appeals for the Sixth Circuit rejected an employee’s claim that her employer conducted an inadequate investigation into her harassment complaint – even though the harassment stopped – because it did not handle it as she thought it should have been handled. For more, click here.

Be Consistent In Enforcing Those E-Mail Policies. E-mail policies have been a topic of intense scrutiny by the National Labor Relations Board. For more, click here.

Inconsistent Explanations Dooms Employer’s Defense Against Race Discrimination Claim. In reversing a federal trial court’s decision in favor of the employer on an employee’s reverse race discrimination claim, the U.S. Court of Appeals for the Seventh Circuit noted that the employer “told two incompatible stories about both how and why” it made the promotion decision at issue. For more, click here.

NLRB General Counsel Pushes for Interim Settlements in Lieu of Injunctive Relief. The General Counsel of the National Labor Relations Board has issued a memorandum directing NLRB staff attorneys to pursue settlements of unfair labor practice claims in place of seeking court-ordered injunctive relief, for the stated purpose of better focusing the agency’s resources. For more, click here.

The Rare Case Where the “N” Word Did Not Create a Hostile Work Environment. (This case summary comes with the warning: “Don’t try this at in your workplace.”) As we have previously discussed (in our September 2022 E-Update and March 2022 E-Update, for example), courts are quick to find that the single use of the “N” word in the workplace can create a hostile work environment under Title VII. But a recent case bucked that trend – although based on circumstances that were very specific to the situation. For more, click here.


TOP TIP: A New (Mandatory?) Retirement Savings Benefit for Maryland Employees

Employers of Maryland employees recently may have received various notices regarding a new state program – MarylandSaves. While employers tend to view “mandatory” (more on that later) government programs with some skepticism, this program is intended to benefit Maryland employers and their employees by encouraging saving for retirement and providing an easy-to-use retirement savings option for those employers who do not already have one – at no cost to and with minimal effort from the employer. For more, click here.