President Trump has the opportunity to fill vacant seats on the National Labor Relations Board (“NLRB” or “Board”), creating an employer-friendly and Republican majority. He will also be able to appoint new general counsel of NLRB in November 2017. No new board members have been appointed, although reports have circulated that he is narrowing in on potential appointees. It is suspected that his final appointments to these positions will occur by the end of the year.
Read MoreWhen an employee or former employee files a discrimination charge against your company, the pressure and burdens associated with complying with an Equal Employment Opportunity Commission (EEOC) investigation can be significant. However, a recent decision from the U.S. Supreme Court makes clear that the EEOC’s investigation subpoena powers are not limitless.
Read MoreLast month, President Trump rescinded the Obama-era Fair Pay and Safe Workplaces executive order (a/k/a, the “Blacklisting Order”), which required companies to disclose violations of numerous federal employment and labor laws in order to qualify for contracts with the federal government, and practically created the risk that certain employers would be “blacklisted” from procuring federal contracts. The repeal came through the Congressional Review Act of 1996 (the “CRA”), which provides a fast-track process for repealing agency regulations.
Read MoreImmigration and Customs Enforcement (“ICE”) activity has increased in the Trump Administration, and employer audits are expected to increase. Employer compliance with the new I-9 requirements, which went into force on January 21, 2017, is now more important than ever.
Read MoreOn April 4, 2017, the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that sexual orientation is a protected status under Title VII of the Civil Rights Act of 1964 (“Title VII”). With this significant ruling, the Seventh Circuit has created a split among U.S. Circuit Courts, making the issue ripe for a definitive ruling by the Supreme Court.
Read MoreA 2015 report by the White House Council of Economic Advisors found that retirement accounts were reduced $17 billion a year because of biased advice from financial advisors. The Department of Labor (“DOL”) Fiduciary Rule, set to be enacted this year, seeks to eliminate these losses by placing a fiduciary duty on financial professionals to put the interest of their clients first and eliminate conflict of interest trades – at least when it comes to pre-tax retirement accounts. However, the Rule, previously set to go into effect on April 10, 2017, is facing probable delay and possible rescission. This article provides background on the proposed Fiduciary Rule, discusses how it might impact company Employee Retirement Income Security Act (“ERISA”) plans and provides insight to the Trump Administration’s delay on the rule.
Read MoreAs the use of social media has become ubiquitous in today’s society, so has the necessity to obtain evidence in litigation from the social networking websites of employees, former employees, and witnesses. However, the use of social media in litigation poses unique ethical and practical challenges for counsel, particularly during the course of discovery. This article briefly identifies two such areas of issues: (1) ethical issues counsel faces when obtaining evidence from social networking websites; and (2) spoliation issues counsel must consider with their client’s social media presence.
Read MoreWhistleblower claims continue to increase, and employers across the country are becoming more and more likely to run into such a claim. Damage awards for whistleblower claims often range into the millions of dollars. Given the severity and potential crippling impact on the company such claims have, employees who “blow the whistle” and report the alleged misconduct may experience various forms of adverse action—both from management and their co-workers. As a result, most whistleblower statutes[1] protect whistleblowers from retaliation. This article addresses best practices to manage whistleblower employees and avoid retaliation claims and additional liability.
Read MoreVCG Holding Corp., a company that owns strip clubs across the country was sued by more than 500 adult dancers for various violations of the Fair Labor Standards Act (“FLSA”) and Colorado Labor Code stemming from their misclassification as independent contractors. This case is one of many lawsuits in the last several years targeting strip club owners and other businesses, and forcing many businesses to reevaluate how they classify and compensate their workers.
Read MoreAmid uncertainty regarding the lawfulness of class-action waivers in employment arbitration agreements, a U.S. District Court has held that such waivers are not unlawful as applied to supervisory employees.[1]
Read MoreIn his February 28, 2017 Congressional address, President Donald Trump urged Congress to consider a paid family leave bill. Democrats and Republicans have introduced bills in the United States Senate (the “Senate Bills”) addressing paid family leave, but the Senate Bills affect employers in significantly different ways.[1] This article analyzes the Senate Bills and their potential impact on employers across the country.
Read MoreEmployers may soon have more clarity regarding the scope of federal agency subpoena power. On February 21, 2017, the United States Supreme Court heard oral arguments in McLane Co. v. EEOC, a case initially brought to determine appropriate procedural standards, but has since grown to a case that may determine the appropriate scope of Equal Employment Opportunity Commission (“EEOC”) subpoena power. This article examines the federal agencies’ subpoena power; the increased agencies’ threats of the use of subpoenas; and an overview of McLane Co. and its potential impact on employers.
Read MorePresident Trump’s announcement of a new Department of Labor (“DOL”) Secretary pick, and statements from the Chairman of the Congressional Workforce Protections Subcommittee (the “WP Subcommittee”) about possible legislation, are setting the stage for changes in employment and labor policy in the Trump administration.
Read MoreThe 2017 Colorado proposed legislation could significantly impact Colorado employers. On January 31, 2017, Senators Jack Tate (R-District 27) and Jim Smallwood (R – District 4) spoke at the Labor and Employment Council for the Colorado Association of Commerce & Industry (“CACI”) and provided an overview of various proposed employment laws. Below is Campbell Litigation’s report on the meeting.
Read MoreEmployers throughout the country will very likely face fewer regulatory burdens in the next four years. President Trump recently signed an executive order directing federal agencies to eliminate two current regulations for every new regulation they implement (the “Executive Order”). President Trump stated one of the goals of the Executive Order will be to help grow business by reducing regulation, and further explained that he wants to eliminate “a little more than 75 percent” of current regulations. President Trump’s Executive Order and comment clearly signal a reversal from the previous administration’s philosophy concerning regulations, and many business groups and associations have applauded the change.
Read MoreA recent National Labor Relations Board (“NLRB” or the “Board”) decision highlights the well-established rule that an employer violates Section 8(a) of the National Labor Relations Act (“NLRA” or “Act”) by prohibiting employees from discussing unionization, when employees are not otherwise prohibited from discussing other subjects unrelated to work.
Read MoreThe United States Supreme Court will decide the validity of class action waivers within employment arbitration agreements. On January 13, 2017, the Supreme Court granted certiorari to and consolidated three separate petitions requesting that the Court review this issue. The Court has yet to set a date for oral argument, but will likely decide this issue before taking its summer recess in late June 2017. Currently, there is a deep split in the federal appellate courts regarding whether employment arbitration agreements that contain class action waiver clauses are enforceable, as two federal appellate courts have found such agreements unenforceable, and four federal appellate courts have held such agreements are valid.
Read MoreThe Third Circuit Court of Appeals (“Third Circuit”) recently held that the Age Discrimination in Employment Act (“ADEA”) permits plaintiffs within a subgroup of the protected class to bring a disparate-impact claim. The Third Circuit decision is the first to recognize such a claim, and creates a split within the federal appellate courts. This article analyzes ADEA disparate-impact claims and the Third Circuit decision creating the circuit split, and provides practical takeaways for employers.
Read MoreAs of January 1, 2017, Colorado employers must begin paying its employees a minimum of $9.30 per hour, or $6.28 per hour for tipped employees, an increase of $0.99 per hour. In November 2016, Colorado passed Amendment 70, which will gradually increase the state’s minimum wage to $12.00 per hour by January 2020, and the first—and biggest—increase took effect January 1, 2017. While Amendment 70 did not specifically address the tipped employee minimum wage, Colorado’s Minimum Wage Order Number 33 only permits up to $3.02 per hour in tip income to offset the standard minimum wage. Accordingly, Colorado’s tipped minimum wage will also gradually increase each year until it reaches $8.98 per hour in January 2020.
Read MoreIn 2017, we will continue to focus on the areas of most importance for employers not only in the Rocky Mountain region, but across the country as well. In 2017, we anticipate that some of the key areas impacting employers will include: The Trump Administration’s relaxing of regulations on employers; The Supreme Court ruling on whether arbitration agreements can include class action waivers; likely increases to the minimum wage; and further guidance regarding LGBT protections under Title VII of the Civil Rights Act of 1964.
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