The Weekly Guide to Employment Law Developments

The Rocky Mountain Employer

Labor & Employment Law Updates

Federal Appeals Court Rejects Employee’s Claim of Sex Discrimination Based on Her Son’s Gender Dysphoria

This week, the Eighth Circuit Court of Appeals held that an employee could not bring a sex discrimination claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Minnesota Human Rights Act (“MHRA”) based on alleged harm to her son. In Tovear v. Essentia Health, the plaintiff employee and her son, who was diagnosed with gender dysphoriawere was enrolled in her employer’s health insurance plan. The employer’s insurance plan categorically excluded coverage for gender reassignment services and surgeries, and accordingly denied the plaintiff’s requests that her son get coverage for medications and gender reassignment surgery. The plaintiff claimed that her employer engaged in unlawful sex discrimination by refusing to cover the requested treatment.

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SECOND CIRCUIT BREATHES NEW LIFE INTO INDEPENDENT CONTRACTOR RELATIONSHIPS, FINDING BLACK CAR DRIVERS IN NYC ARE INDEPENDENT CONTRACTORS

Last month, the Second Circuit Court of Appeals (“Second Circuit”) dismissed black-car franchisees’ claims for overtime pay under the Fair Labor Standards Act (“FLSA”), holding the franchisees were independent contractors. The decision shows that courts will recognize and enforce independent contractor relationships where the proper agreements and structure are in place throughout the duration of the working relationship.

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SCRUTINY OF EMPLOYER POLICIES AND PRACTICES CONTINUES AS THE NLRB AWAITS TRUMP’S APPOINTMENT OF NEW BOARD MEMBERS

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.   

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SUPREME COURT RE-STATES LIMITS OF EEOC SUBPOENA POWER

When 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.

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FEDERAL CONTRACTORS BENEFIT FROM TRUMP ADMINISTRATION’S REPEAL OF BLACKLISTING ORDER

Last 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.

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Employers Must Now Use Revised Form I-9 – Are You In Compliance?

Immigration 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.

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INCLUSION OF SEXUAL ORIENTATION AS A TITLE VII PROTECTION RIPE FOR SUPREME COURT REVIEW

On 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.

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The Uncertain Future of the DOL Fiduciary Rule and its Impact on ERISA Plans

A 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.

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Ethical Considerations of Social Media Evidence in Discovery

As 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.  

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Managing Whistleblower Employees

Whistleblower 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.

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Independent Contractor Misclassification Still a Concern for Colorado Companies

VCG 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. 

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Court Holds That Class Action Waivers Signed by Supervisors Are Lawful

Amid 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]

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Paid Family Leave Could Become a Reality

In 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.

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Questioning Scope of the Federal Agency Subpoena Power

Employers 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.

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Federal Update: Puzder Withdraws - Acosta Nominated; and Congress Likely to Consider Minimum Wage and Joint Employer Liability Legislation

President 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.

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2017 Proposed Colorado Employment Laws

The 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.

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Employers May Soon See Reduced Regulation

Employers 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.  

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NLRB Finds Employer Unlawfully Prohibited Employees from Discussing Union

A 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.

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Supreme Court Will Determine Whether Employers May Use Class Action Waivers in Employment Arbitration Agreements

The 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.

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Third Circuit Recognizes ADEA Subgroup Disparate-Impact Claims; Creates Circuit Split

The 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.

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