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Labor & Employment Law Updates

Supreme Court Expected to Provide Clarity on Exhaustion of Remedies Requirement

The U.S. Supreme Court will consider whether federal courts have the power to review claims brought under Title VII of the 1964 Civil Rights Act (“Title VII”) if the plaintiff did not first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency.

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Supreme Court Delivers Another Victory for Arbitration Agreements  

In a unanimous opinion, the U.S. Supreme Court held this week that where an agreement gives an arbitrator authority to decide what disputes must be arbitrated, courts may not refuse to send a case to arbitration even if it is clear from the terms of the contract that the request to arbitrate is “wholly groundless.”

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Colorado’s 2019 Legislative Session Expected to Bring a Slew of Workplace Bills

Colorado’s 2019 Legislative Session begins January 4, 2019, and, with a new Democratic governor and the Democratic party controlling both chambers of the General Assembly, we expect to see the introduction of numerous workplace and arbitration related bills with potentially far-reaching, and onerous, effects on employers. The following bills, which failed in previous years, likely will be the focus of serious debate between now and late May 2019, when the legislative session is scheduled to end:

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Private Employers Impacted by Partial Government Shutdown  

The partial government shutdown, which began December 22, 2018 and has caused hundreds of thousands of federal workers to stop working or work without pay, has begun to affect private employers who are not government contractors, and employees of such companies, in the following ways:

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Minimum Wages Set to Increase in Twenty-One States

As we approach the end of the year, employers should be aware that minimum wages are set to increase in twenty-one states in 2019.  The following table, which supplements The Rocky Mountain Employer’s post earlier this year, sets forth the upcoming 2019 increases in minimum wages and tipped employee minimum wages.

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Unauthorized Copying of Co-Worker Personnel Files to Support Discrimination Claim Is Not Protected Conduct

An employer did not violate federal law by firing an employee for copying confidential coworker personnel files in an effort to support her discrimination claim, the Fourth Circuit Court of Appeals ruled. The court in Netter v. Barnes rejected the plaintiff’s argument that stealing confidential personnel files for the purpose of proving a discrimination claim is protected conduct under Title VII of the Civil Rights Act of 1964 (“Title VII”).

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Professor’s Claim That Public Union Violates Her Free Speech Rights Rejected by Federal Courts

This week, the Eighth Circuit Court of Appeals upheld the denial of a preliminary injunction in a case challenging the legality of public sector unions.

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Employees May Bring Title VII Failure-to-Accommodate Claims Based on Religion Only When They Have Suffered an Adverse Employment Action

Plaintiffs bringing failure-to-accommodate claims under the Title VII of the Civil Rights Act of 1964 (“Title VII”) based on religion must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent federal district court case in Colorado.

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Campbell Litigation Wishes You a Happy Thanksgiving

Campbell Litigation and the Rocky Mountain Employer wish you a happy and safe Thanksgiving. We will resume postings next Thursday, November 29, 2018.

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Kentucky Companies May Not Condition Employment on Agreement to Arbitrate

The Kentucky Supreme Court has ruled that employers in that state may not require employees to sign an employment arbitration agreement as a condition of employment, as such a condition violates state law.

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The Age Discrimination in Employment Act Applies to All Public Employers, Regardless of Size

The United States Supreme Court ruled that federal Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits age discrimination against all state and local government employees, no matter the size of their employer. The ADEA expressly applies only to private employers with 20 or more employees, but is silent as to whether it applies to all public employers, regardless of size. The unanimous decision in Mount Lemmon Fire District v. Guido settles a split among federal appellate courts as to whether the ADEA applies only to public employers with 20 or more employees.

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Employees May Bring ADA Failure-to-Accommodate Claims Only When They Have Suffered an Adverse Employment Action

Plaintiffs bringing failure-to-accommodate claims under the Americans With Disabilities Act (“ADA”) must prove they suffered an adverse employment action such as a termination, demotion, or decrease in pay, under a recent Tenth Circuit Court of Appeals decision.

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As Election Day Approaches, Employers Should Be Aware of State Voting Leave Requirements

Although elections in Colorado and other states increasingly rely on mail-in ballots, employees may soon be requesting time off to vote on election day—November 6, 2018. Most states require employers to give employees time off to vote, and many states require employers pay for time spent voting during work hours. Below are voting leave requirements for employers operating in Colorado, California, New Mexico, Utah, and Wyoming.

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U.S. Supreme Court to Rule on Important Employment Issues in 2018-2019 Term

The United States Supreme Court’s 2018-2019 session is underway and the employment cases on its docket may have a significant impact on employers, particularly regarding employment arbitration agreements.

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States Respond to #MeToo Movement by Enacting Laws Designed to Curb Sex Harassment in the Workplace

The #MeToo movement has caught the attention of state legislatures across the country. So far, twelve states—ArizonaCaliforniaDelawareIllinoisLouisianaMaryland, Nebraska, New YorkOregonTennesseeWashington State, and Vermont—have enacted new laws providing protections related to sexual harassment in private and public sector workplaces.

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Colorado Minimum Wage to Increase in 2019

Colorado employers should prepare for an increase in the state minimum wage from $10.20 to $11.10, per hour, and from $7.18 to $8.08 per hour for tipped employees, effective January 1, 2019. The increase comes as a result of Amendment 70, under which Colorado’s minimum wage increases annually by $.90 until it reaches $12.00 per hour in 2020.

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Employer-Friendly Joint-Employer Rule Proposed by NLRB

The National Labor Relations Board (“NLRB”) has proposed a joint employer rule change that would upend a controversial Obama-era decision that drastically expanded who can be subject to liability for unfair labor practices and deemed an essential party for collective bargaining. The NLRB’s proposed rule reinstates the “traditional test,” whereby an employer may be considered a joint employer of another employer’s employees only if it possesses and actually exercises substantial direct and immediate control over the employees’ essential terms and conditions of employment.

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Department of Labor Told to Modestly Increase Salary Threshold for White Collar Overtime Exemptions, Over Several Years

As guidance to the U.S. Department of Labor (“DOL”) in its efforts to determine how best to increase the minimum salary for the White Collar Overtime Exemptions, a large gathering of employee and employer advocates from the Rocky Mountain region told the DOL to increase the current annual $23,660.00 salary threshold modestly over a period of several years, at the DOL Listening Session held in Denver on September 14, 2018. Campbell Litigation attended the Session and provides the following summary of participants’ responses to the following questions:

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Uptick in Sexual Harassment Claims Reported in Wake of #MeToo Movement

The number of sex harassment claims filed against employers has increased in the year since the #MeToo movement began. The Equal Employment Opportunity Commission’s (“EEOC”) preliminary 2018 figures show that just under 10,000 sexual harassment claims have been filed to date in 2018, which is a three percent increase over the previous year.

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Employers in Colorado and Other Western States Must Litigate Untimely Discrimination Claims Under Recent Decision

Under a recent appellate decision, employers in Colorado and several other Western states must litigate clearly untimely discrimination lawsuits, which in the past were summarily dismissed by federal courts for lack of jurisdiction.

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