Employee Who Posted Stolen Document on Facebook Loses Federal Protections

An employee who posted a damning, but stolen, document on Facebook lost the protections of the National Labor Relations Act, under an Advice Memorandum issued by the National Labor Relations Board’s (“NLRB”) Division of Advice.

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Restaurant Chain May Not Ban Union Buttons, Federal Court Holds

A federal appeals court held that In-N-Out Burger violated the National Labor Relations Act (“NLRA”) when it instructed employees not to wear “Fight for $15” buttons on their uniforms. The National Labor Relations Board (“NLRB”) and federal courts have long held that employees have the right to wear buttons, pins, and stickers that relate to the terms and conditions of their employment and unionization, except under “special circumstances.” Special circumstances may exist when allowing employees to display such items would: (1) jeopardize employee safety; (2) damage machinery or projects; (3) exacerbate employee dissention; or (4) unreasonably interfere with a public image that the employer has established through appearance rules of its employees.

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Court Holds That Franchisor Is Not a Joint Employer of Franchisee Employees

A federal district court in Illinois ruled that Jimmy John’s Franchise, LLC (“Jimmy John’s”) is not a joint employer of its franchisees’ employees.

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Supreme Court Rules Against Unions In Battle Over Public Worker Fees

This week, the U.S. Supreme Court ruled that states may not force public sector workers to contribute to labor unions when such workers choose not to join the unions. The 5-4 decision abolishes the so-called “fair share” fees, i.e., the requirement in over two-dozen states that public sector workers who decline to join a union must nevertheless pay a portion of dues to the union.

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Employers’ and Businesses’ Anti-Discrimination Obligations Remain Unchanged by Supreme Court’s Masterpiece Cakeshop Decision

The Supreme Court’s highly-awaited decision in the Masterpiece Cakeshop case—which pit anti-discrimination obligations against religious freedoms—has caused some companies to ask how the decision changes their obligations under anti-discrimination laws in the areas of employment and public accommodation. The answer is, the decision does not change employers’ obligations to adhere to federal and state anti-discrimination laws.

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Employers Given Clarity on Handbook Rules

Last week, the National Labor Relations Board’s Office of General Counsel (the NLRB’s “G.C.”) provided clarity as to what facially neutral employment handbook rules will be considered lawful under the NLRB’s updated Boeing Company test.

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Misclassification of Independent Contractors—A Continuing Concern in Colorado

This week, Colorado Governor John Hickenlooper signed an Executive Order creating a joint task force to address worker classification and payroll fraud in the construction industry. The task force will consist of seven members of business associations and labor groups, appointed by the Governor, and will be charged with assessing current agency practices regarding misclassification, fostering information-sharing between agencies, facilitating complaints, identifying violators, and proposing administrative changes.

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Colorado’s State Anti-Discrimination Agency Reauthorized

Last week, Colorado Gov. John Hickenlooper signed a bill re-authorizing both the Colorado Civil Rights Division (“CCRD”), which is the Colorado agency charged with enforcing the state’s anti-discrimination laws in the areas of employment, housing, and public accommodations; and the Colorado Civil Rights Commission (“Commission”), which is a seven-person board that develops policies and conducts hearings regarding alleged discrimination. The legislative action, which ended months of “trench warfare” on the issue, ensures that the CCRD will receive funding and continue operations.

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U.S. Supreme Court Upholds Use of Class-Action Waivers in Employment Arbitration Agreements

The Supreme Court ruled this week that class-action waivers in arbitration agreements are lawful. The much-anticipated Epic Systems Corp. v. Lewis decision provides clarity to employers nationwide, who previously were required to navigate a patchwork of various state, federal, and agency rules concerning the use of class-action waivers in employment arbitration agreements.

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Employers Are Not Required to Accommodate Employees’ Requests for Shorter Workday Where Overtime Is an Essential Function of the Job, Eighth Circuit Holds

An employer may refuse to accommodate a request for reduced hours from an employee with a disability where overtime is an essential function of the job, the Eighth Circuit Court of Appeals recently held. 

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Colorado Legislature Kills Paid Medical Leave and Local Minimum Wage Bills Before Close of Session

Two bills with potentially wide-reaching effects on Colorado employers did not survive the recently-closed legislative session.

 

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California Independent Contractors May Become Employees Under the “ABC Test”

This week, the California Supreme Court made it more difficult for many employers to lawfully classify workers as independent contractors under California wage-and-hour law.

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Arbitration Agreements Under Fire in the #MeToo Era

In the wake of the #MeToo environment, legislators in several states and in Congress have taken aim at arbitration agreements as they apply to claims of sexual harassment in the workplace.  Additionally, all 56 attorneys general recently sent a letter to Congress asking it to prevent employers from requiring that sexual harassment claims be resolved through arbitration.

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Workplace Policy Prohibiting Salary Discussions Deemed Unlawful

A National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) held that an employer’s “confidential information” rule prohibited employees from discussing wages, and therefore violated Section 7 of the National Labor Relations Act (“NLRA”). 

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Ninth Circuit Holds That Prior Salary Cannot Justify Wage Gaps Between Women and Men

The Ninth Circuit Court of Appeals ruled this week that employers may not justify pay differences between women and men by relying on prior salary. The Rizo v. Yovino decision concerned the Equal Pay Act, which prohibits employers from paying male and female employees different wages for substantially equal work, unless the wage difference is the result of (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based on “any factor other than sex.”

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High Court Rejects “Narrow Construction” Principle for FLSA Exemptions

This week, the United States Supreme Court issued a much-anticipated decision regarding whether service advisors working at a car dealership were exempt from the overtime pay requirements of the Fair Labor Standards Act (“FLSA”).  In a 5-4 decision, the Court in Encino Motorcars, LLC v. Navarro ruled that service advisors are exempt from overtime pay requirements under the “salesman, partsman, or mechanic” exemption to the FLSA, and thus rejected the Department of Labor’s Obama-era interpretation of that exemption.  In making this decision, the Court rejected the long-standing “narrow construction” principle that the FLSA’s exemptions should be interpreted narrowly, ruling instead that such exemptions should be given a “fair reading.”

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Accurate Performance Reviews-Based upon Current Performance-Prevail

Pervez Rashid, a Muslim of Pakistani descent and manager of Washington Metropolitan Area Transit Authority (“WMATA”), received satisfactory performance reviews under a prior manager.  Rashid received a new manager, his job title and duties changed and his performance decreased, resulting in WMATA firing him.  Rashid sued for religious discrimination, but lost because, although he satisfactorily performed under the prior manager (an argument Rashid made), “when a district court evaluates the question of whether an employee was meeting an employer’s legitimate employment expectations, the issue is not the employee’s past performance but whether the employee was performing well at the time of [his] termination.”  

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Tenth Circuit Holds That Employees Need Not Allege Specific Facts of Willfulness to Assert Older Wage Claims Under the Fair Labor Standards Act

This month, the Tenth Circuit Court of Appeals (which hears appeals from federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) reinstated wage claims of two house cleaners under the Fair Labor Standards Act (“FLSA”), and rejected the argument that such claims were time-barred because they were more than two years old.

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Colorado Wage Claims Limited to Two-year’s Back Pay (or up to three years for willful violations)

The Colorado Supreme Court has ruled that the Colorado Wage Act’s (the “Wage Act”) two- and three-year statutes of limitations do apply to claims brought by employees to recover unpaid wages and compensation upon termination. In Hernandez v. Ray Domenico Farms, Inc., several hourly agricultural workers sued their former employer for allegedly unpaid wages going back over the entire period of their employment (which in some cases spanned more than 20 years). The Supreme Court held as follows:

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NLRB Changes Course on Joint Employment Test—at Least Temporarily

 We recently reported that the National Labor Relations Board (“NLRB”), in its Hy-Brand Industrial Contractors decision, had restored the “traditional test” for determining whether two or more businesses are joint employers (whereby two or more entities will be deemed joint employers where one entity actually exercised control over another entity’s employees) and rejected the Obama-era Browning-Ferris decision (in which a business can be deemed a joint employer if it merely had indirect or potential control over another entity’s employees, even if it never exercised such control).  In the past two weeks, the NLRB has (1) vacated its Hy-Brand decision on procedural grounds; and (2) asked the U.S. Court of Appeals for the District of Columbia Circuit to continue its review of the Browning-Ferris decision, which was pending before that court at the time the NLRB issued its decision in Hy-Brand.

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