The Rocky Mountain Employer

The Rocky Mountain Employer

The Weekly Guide to Employment Law Developments

Eighth Circuit Finds Independent Contractor Noncompete Agreement to be Unenforceable

The Eighth Circuit Court of Appeals ruled last week that an Iowa company in the business of selling fertilizer, nutrients, and crop-management services could not enforce a noncompetition agreement against a former independent contractor, a sales representative. In AG Spectrum Co. v. Elder, the noncompetition provision prohibited the sales representative from competing with the company for three years if either party ended the contractual relationship. The court found that the company did not show that the noncompetition provision in its independent contractor agreement was reasonable – the governing test under Iowa contract law. In Iowa, the ultimate goal of enforcing noncompetition agreements is to prevent unjust enrichment.

Campbell Litigation, P.C.August 10, 2017Colorado, noncompete, Eighth CircuitComment

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What You Should Know: Federal and State Employment Protections for Transgender Workers

In light of the publicity surrounding President’s Trump’s recent tweets regarding transgender individuals serving in the United States military, it is important for employers to be aware of current prohibitions at the state level for employment discrimination based on an employee’s status as a transgender man or woman, as well as the Equal Employment Opportunity Commission’s (“EEOC”) current view that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on transgender status. A transgender person is someone whose gender identity differs from the sex marked on their birth certificate.

Campbell Litigation, P.C.August 3, 2017Trump, Trump Twitter, Transgender, Colorado Anti-Discrimination Act, CADA, EEOCComment

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U.S. Department of Labor Will No Longer Enforce Obama-Era Tip-Pool Regulation

The United States Department of Labor (“DOL”) will no longer enforce an Obama-era regulation concerning when and how employers may use tip-pools (i.e., pools of tips collected by restaurants and other service industry employers, and redistributed among employees). The 2011 regulation prohibited employers who did not take a “tip credit”—that is, employers who paid their employees the full minimum wage—from requiring their tipped employees, such as servers and bartenders, to share tips with non-tipped employees, such as dishwashers, cooks, hosts, and floor supervisors. Previously, courts had held that prohibitions on tip pooling could apply only to employers who took a tip credit.

Campbell Litigation, P.C.July 27, 2017tip-pools, tips, tip credit, tenth circuitComment

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Fifth Circuit Decision Highlights Importance of Harassment Reporting Policies

This week, the Fifth Circuit Court of Appeals affirmed the summary judgment dismissal of an employee’s claim that he experienced a hostile work environment because of his disabilities—namely, stuttering and anxiety problems. The decision rests on the plaintiff’s failure to internally complain about alleged harassment, and shows just how important workplace reporting policies are.

Campbell Litigation, P.C.July 20, 2017Fifth Circuit, Hostile Work, harassment, employee handbookComment

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U.S. Department of Labor Weighs in on Increase in “White Collar Exemption” Overtime Salary Threshold

In its June 30, 2017, Fifth Circuit Court of Appeals filing, the U.S. Department of Labor (“DOL”) provided its first indications of how the new Administration intends to alter the landscape of mandatory overtime rules. Picking up where the Obama Administration’s May 2016 Final Rule was left, currently under appeal after a November 2016 preliminary injunction blocked its enforcement, the DOL indicated it wants more workers to be eligible for overtime pay, just not as many as the Obama Administration.

Campbell Litigation, P.C.July 13, 2017Comment

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U.S. Supreme Court Provides Limited Guidance to Employers During Last Term But Is Anticipated To Provide More Useful Guidance in Fall

The U.S. Supreme Court decided a few employment-related cases during its 2016 term addressing the appropriate standards for reviewing EEOC issued subpoenas and preventing forum shopping by employees wanting to sue their employers.

Campbell Litigation, P.C.July 6, 2017Comment

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EMPLOYERS MAY FIND COMFORT IN THE ECONOMIC REALITY TEST FOR INDEPENDENT CONTRACTORS

The U.S. Department of Labor (“DOL”) Administrator’s Interpretation No. 2015-1 (“AI 2015-1”) referenced the use of the Economic Reality Test for companies to determine whether workers were independent contractors or employees. President Obama’s DOL further stated that most workers were employees under the Fair Labor Standards Act (“FLSA”). Earlier this month, President Trump’s DOL withdrew AI 2015-1 and on the DOL website, states that removal of AI 2015-1 “does not change the legal responsibilities of employers under the Fair Labor Standards Act . . ..”

Campbell Litigation, P.C.June 30, 2017independent contractor, Fair Labor Standards Act, economic reality testComment

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President Trump’s Department of Justice Reverses Stance on Class Action Waivers – to the Benefit of Employers

In a rare move, the U.S. Department of Justice (“DOJ”) reversed its Obama-Era position in a significant pending Supreme Court case that is expected to resolve a growing circuit split over whether an employment contract that requires an employee to waive his or her right to bring or participate in a class action violates the National Labor Relations Act (“NLRA”). In an amicus curiae brief filed on Friday, June 16, 2017, the DOJ sided with employers, expressly acknowledging that it had “previously filed a petition…on behalf of the NLRB, defending the Board’s view” that class action waivers should be invalidated, but stating that “[a]fter the change in administration, the [DOJ] reconsidered the issue and has reached the opposite conclusion.” In stating that its previous position did not give “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the Federal Arbitration Act (“FAA”),” the DOJ argued in its amicus brief that enforcing arbitration agreement with class waivers does not deprive employees under the NLRB, and that enforcement is required under the FAA with certain limited exceptions.

Campbell Litigation, P.C.June 22, 2017NLRA, class actionComment

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Always Check Whether a Plaintiff’s Claim is Timely: Tenth Circuit Court of Appeals Affirms Dismissal of Employment Discrimination Case Filed Six Days Late

Under Title VII of Civil Rights Act of 1964 (“Title VII”), the Americans With Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and most state anti-discrimination statutes, employees may file a lawsuit no later than 90 days after receiving notice from the administrative agency that the investigation has concluded (a “Notice of Right to Sue”). Courts strictly enforce the 90-day limitations periods, which in Title VII, ADA, and ADEA cases are “condition precedent to suit,” and, in the case of many state anti-discrimination acts, are jurisdictional, meaning a plaintiff’s failure to file within 90 days will strip the court of jurisdiction to hear a claim.

Campbell Litigation, P.C.June 15, 2017Title VII, Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment ActComment

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High Court Limits Employee Forum Shopping

Corporations doing business throughout the U.S. subject themselves to employment lawsuits in various states. Recent U.S. Supreme Court guidance, however, prevents employees from forum shopping their claims to a more favorable jurisdiction, especially when the employee does not live in the jurisdiction and the alleged injury did not occur in the jurisdiction.

Campbell Litigation, P.C.June 8, 2017forum shopping, FELA, Federal Employers Liability ActComment

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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.

Campbell Litigation, P.C.May 25, 2017Title VII, Civil Rights Act of 1964, Eighth Circuit, Sex Discrimination, Gender DysphoriaComment

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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.

Campbell Litigation, P.C.May 18, 2017Independent contractor, Second Circuit, Fair Labor Standards Act, FLSAComment

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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.

Campbell Litigation, P.C.May 11, 2017Comment

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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.

Campbell Litigation, P.C.May 4, 2017EEOC, discrimination, EEOC SubpoenaComment

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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.

Campbell Litigation, P.C.April 27, 2017Trump, Blacklisting, Congressional Review Act of 1996, CRA, federal contractorsComment

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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.

Campbell Litigation, P.C.April 20, 2017I-9 Form, I-9, Immigration, Immigration and Customs EnforcementComment

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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.

Campbell Litigation, P.C.April 13, 2017Title VII, Civil Rights Act of 1964, Gorsuch, Colorado, discriminationComment

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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.

Campbell Litigation, P.C.April 6, 2017DOL Fiduciary Rule, DOL, Fiduciary, ERISAComment

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