September 2022 E-Update


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An Employer Must Not Retaliate Against an Employee for Others’ Activity

In several recent cases, the National Labor Relations Board reminds employers that illegal retaliation against a worker can occur even if they were not directly involved in the protected actions of others – whether co-workers or unions. For more, click here.

Can Employee’s Own Testimony Support Their Disability?

According to the U.S. Court of Appeals for the Eleventh Circuit, the answer is “Yes.” But that answer comes with caveats. For more, click here.

Federal Contractor Update – Extended Objections to Disclosure of EEO-1 Reports, Revised Directive on Functional Affirmative Action Programs, and New Disclosure Requirements

It was another active month for government contractors and subcontractors. The U.S. Department of Labor and its Office of Federal Contract Compliance Programs (OFCCP) have taken the following actions. For more, click here.


An Independent Review Can Help Insulate Termination Decisions. This is particularly true when an employee has engaged in some form of protected conduct – such as taking leave under the Family and Medical Leave Act, as shown in a recent case from the U.S. Court of Appeals for the Tenth Circuit. For more, click here.

Employers – You May Not Dig Up Reasons for Termination. The U.S. Court of Appeals for the Third Circuit made this quite clear in a recent case involving an employee’s cell phone messages soliciting prostitutes while at work. While this behavior was quite clearly improper, unfortunately the employer’s search of the cell phone was also improper, according to the Third Circuit. For more, click here.

Employer Unlawfully Implemented Punch-in Policy, Says NLRB. “In Troy Grove, the National Labor Relations Board held that the unionized employer violated the National Labor Relations Act by implementing a rule regulating how early employees could clock in prior to their shift. For more, click here.

Non-Employees May Create a Hostile Work Environment. A recent case from the U.S. Court of Appeals for the Fourth Circuit reminds employers that they are responsible for ensuring that employees are not subjected to harassment by non-employees – including six-year old children. For more, click here.

More Federal Protections for Gig Workers? The Federal Trade Commission, which is not typically involved in employment matters, has decided to throw its weight behind protecting the interests of gig workers from “unfair, deceptive and anticompetitive practices.” The FTC has issued a policy statement that identifies its concerns and the actions that it intends to take. For more, click here.

Well, If You’re An Employer Who Really Wants Your Employees to Unionize, There’s a Federal Agency Toolkit for You. Perhaps in an excess of optimism, multiple federal agencies – the Department of Labor, the Small Business Administration, the National Labor Relations Board, and the Federal Mediation and Conciliation Services – have partnered to create an online toolkit “for employers seeking guidance on supporting and responding to their employees interested in exercising their right to form or join a union.” For more, click here.

Expansion of OSHA’s Severe Violator Enforcement Program. The U.S. Department of Labor announced that it was expanding the criteria for placement in the Occupational Safety and Health Administration’s Severe Violator Enforcement Program. For more, click here.

TOP TIP: Applicants and Prescription Drugs – What Employers Can and Should Do

Many employers require applicants to take a post-offer/pre-employment drug test. In and of itself, a drug test is not considered a medical examination under the Americans with Disabilities Act – but it can reveal the use of prescription drugs, which will then trigger the ADA. Several recent cases illustrate what employers can do, and what they should not do, if an applicant tests positive for prescription drugs. For more, click here.