October 27, 2022

Labor and Employment Newsletter

3 min

We Want to Hear from You

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.


Employee or Independent Contractor: The Department of Labor Proposes a "New" Worker Classification Rule

On October 11, 2022, the U.S. Department of Labor (the DOL) announced a proposed rule to reestablish the pre-2021 analytic framework for assessing the classification of workers under the Fair Labor Standards Act (FLSA). The proposed rule replaces the employer-friendly test for worker classification adopted in 2021 with a "totality-of-the-circumstances" test previously used by courts. With this proposed rule, the DOL signals a shift back to a more expansive view of "employee." Employers who engage independent contractors should consider how this proposed rule could impact business operations.

Up in Smoke: AB 2188 Outlaws Discrimination in Employment in California Based on Employees' Off-Duty Cannabis Use (But It Doesn't Take Effect until 2024)

On September 18, 2022, Governor Gavin Newsom signed into law Assembly Bill 2188, aimed at preventing employers from penalizing workers for using marijuana during their off-work hours if such use does not impair them at work.

Education Roundup: Is It Enrollment Season Already? Fine-Tuning Your Enrollment Contract for the 2023-2024 School Year

The enrollment contract sets the foundation and expectations for the relationship between the school and its community members. As such, it is important to ensure that your enrollment contract is well drafted and unambiguous and addresses current and salient issues facing the school. Before issuing or reissuing enrollment contracts for the 2023-2024 school year, independent schools should consider addressing the following updates.

Continuing Flexibility: DHS Extends I-9 Rules Until July 2023

On October 11, 2022, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), announced an extension to the Form I-9 flexibilities that have been in place since March 2020. As we previously reported, in response to the COVID-19 pandemic, DHS has allowed employers with remote workforces to collect, inspect, and retain certain employees' identity and employment authorization documents remotely. This flexibility was last set to expire on October 31, 2022, but is now extended until July 31, 2023.

Attorney Spotlight

Doreen MartinDoreen Martin: I have spent many years conducting internal investigations on behalf of employers and want to provide the following piece of advice regarding the handling of whistleblower complaints. Special protections for individuals categorized as "whistleblowers" exist under federal and state statutes, and employee complaints that fall under a recognized whistleblower statute may require special handling. For example, while all investigations should be kept confidential to the greatest extent possible, some whistleblower statutes require a higher level of anonymity for reporting employees. Additional document preservation burdens or procedural investigation requirements may also be required. For these reasons, employers should determine, as early as possible in the investigation process, whether alleged behavior in a complaint implicates any whistleblower statutes. Employers should work closely with internal counsel or consult outside counsel to determine if an individual who is the subject of an investigation might be a protected whistleblower and ensure that such person receives all the protection to which they are entitled.

About the Labor and Employment Group

The bicoastal, 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.

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