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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DOL to Host Listening Sessions About Proposed White Collar Overtime Rule

In the ongoing journey towards a possible rewrite of the white-collar exemptions contained in the “Overtime Rule,” the Department of Labor recently announced an upcoming series of listening sessions being held around the country to gather input from all those interested, primarily employers.

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Failing to Give Employee Emergency Restroom Break May Violate Disability Law

 The U.S. Equal Employment Opportunity Commission (“EEOC”)  claims that the Home Depot violated the Americans with Disabilities Act (“ADA”), which prohibits disability discrimination in employment and requires employers to provide reasonable accommodations to disabled employees, unless such accommodation would cause an undue hardship. According to the EEOC, the Home Depot refused to allow an employee with irritable bowel syndrome and fibromyalgia a short bathroom break and instead fired her for abandoning her post at a register when she left to use the restroom. The Home Depot denied the allegations, and denied knowing Plaintiff had irritable bowel syndrome, but despite these facts, the EEOC claims that a short break to care for herself and return to work was an ADA reasonable accommodation that the Home Depot could have—and should have—provided to accommodate the employee’s disability.

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California Employers Must Pay Employees for Minimal and Difficult-to-Track Off-the-Clock Work

California employers must compensate employees for all regularly occurring pre-shift and post-shift tasks that take just a few minutes and are difficult to track, the California Supreme Court recently held.

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ICE Makes Good on Promise to Increase Employer Audits

U.S. Immigration and Customs Enforcement (“ICE”) is in the midst of a nationwide surge in employer I-9 audits, making good on the agency’s previous pledges to step up workforce enforcement efforts and “create a culture of compliance among employers.”

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Offer of Lower-Paying Route Deemed to be a Reasonable Accommodation for Jehovah’s Witness Truck Driver

The Eleventh Circuit Court of Appeals upheld the dismissal of a Florida truck driver’s religious discrimination lawsuit against his former employer. In Walker v. Indian River Transport Co., a food transportation company assigned a Jehovah’s Witness employee a difficult route that required a flexible schedule and availability to work on Sundays. The driver requested Sundays off to attend religious services, and his employer accommodated the request by pulling him off the difficult route (which required availability to work on Sundays) and offering him alternative but lower-paying routes that did not require Sunday driving. The driver was disappointed with the offer and eventually quit.

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Bill Seeks to Curb Workplace Harassment

A bipartisan group of U.S. lawmakers have introduced House and Senate bills that seek to further deter workplace sexual harassment by: (1) banning non-disclosure and non-disparagement clauses in employment contracts, and limiting the use of such clauses in settlement agreements; (2) requiring public companies to provide annual reports to the Securities and Exchange Commission disclosing details about workforce harassment settlements and judgments; and (3) establishing a confidential tip line for employees to report harassment to the Equal Employment Opportunity Commission.  

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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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